106883402 76160156 UST GN 2011 Legal and Judicial Ethics Proper Index 2

Legal Ethics – Duties and Responsibilities of Lawyers

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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

U N I V E R S I T Y O F S A N T O T O M A S F a c u l t a d d e D e r e c h o C i v i l

Q: What are the characteristics of privileged communication? A:

1. Attorney- client privilege where legal advice is professionally sought from an attorney

2. The client must intend the above communication to be confidential

3. Attorney-client privilege embraces all forms of communication and action

4. As general rule, attorney-client privilege also extends to the attorney’s secretary, stenographer, clerk or agent with reference to any fact acquired in such capacity

5. The above duty is perpetual and communication is absolutely privilege from disclosure

6. Persons entitled to claim privileges Q: Who are the persons entitled to claim the privilege? A: The attorney-client privilege covers:

1. Lawyer; 2. Client; and 3. Third persons who by reason of their work

have acquired information about the case being handled such as: a. Attorney’s secretary, stenographer

and clerk; b. Interpreter, messengers and agents

transmitting communication; and c. An accountant, scientist, physician,

engineer who has been hired for effective consultation. (Sec. 24(b), Rule 130, RRC)

Q: Bureau of Immigration and Deportation (BID) Intelligence Agent Hernandez, together with a reporter, went to the house of Aoyagi, a Japanese national. He was told that there were complaints against him in Japan and that he was suspected to be a Yakuza big boss, a drug dependent and an overstaying alien. To prove that he had done nothing wrong, Aoyagi showed his passport to Hernandez who confiscated the same.

A Contract for Legal Services was entered into by Aoyagi and Atty. Acejas III. Aoyagi paid Atty. Acejas P40,000.00, P25,000 of which is 50% of the acceptance fee, and the P15,000.00 is for filing/docket fee. Hernandez, in the presence of Atty. Acejas, proposed that Aoyagi pay the amount of P1 million in exchange for the help he

would extend to Takao in securing a permanent visa in the Philippines. Atty. Acejas did nothing.

Did Atty. Acejas violate the legal ethics of the profession?

A: Yes. The Court reminds lawyers to follow legal ethics when confronted by public officers who extort money. If the extortion is directed at the client, they must advise the client not to perform any illegal act. Moreover, they must report it to the authorities, without having to violate the attorney-client privilege. Naturally, they must not participate in the illegal act. Atty. Acejas did not follow these guidelines. Worse, he conspired with the extortionists. (Acejas III v. People, G.R. No. 156643, June 27, 2006) Q: May a lawyer invoke privileged communication to refuse revealing his clients secrets in the course of professional employment? A: Yes. Rule 15.02 of the Code provides that “A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client”. Q: What is the duration of privilege communication? A: The privilege continues to exist even after the termination of the attorney- client relationship. Note: The privilege character of the communication ceases only when waived by the client himself or after his death, by his heir or legal representative. (Lapena, Jr. 2009)

Q: When is communication not privileged? A: A communication made by a client to a lawyer is not privileged:

1. After pleading has been filed. Note: Pleading ceases to be privileged communication – becomes part of public records.

2. When communication was intended by

the client to be sent to a third person through his counsel. Note: It loses its confidential character as soon as it reaches the hands of a third person.

UST Golden Notes 2011

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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY

3. When the communication sought by client is intended to aid future crime or perpetration of fraud. Note: Past crime is covered by the privilege.

4. When communication between attorney

and client is heard by a third party. Note: Third party testimony is admissible as evidence.

5. When there is consent or waiver of the

client.

6. When the law requires disclosure.

7. When disclosure is made to protect the lawyer’s rights

Note: to collect his fees or defend himself, his employees or associates or by judicial action (Rule 21.01, CPR)

Note: Even if the communication is unprivileged, the rule of ethics prohibits lawyers from voluntarily revealing or using to his benefit or to that of a third person, to the disadvantage of the client, the said communication unless the client consents thereto. .(Sec. 3, Rule 138-A, RRC)

c. Conflict of Interest

(1991, 1992, 1993, 1994, 1997, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008 Bar

Questions)

Q: What is “conflict search”? A: It is examining the causes of action between the prospective client and the lawyer’s current clients. Q: What is the purpose of “conflict search”? A: By conducting a conflict search, the lawyer will be able to determine, in the first instance, if he is barred from accepting the representation through conflicts with his present clients or the lawyer’s own interest. (CPR Annotated, PhilJA)

Q: What are the three tests to determine the existence of conflicting interests? A:

1. Conflicting Duties - When, on behalf of one client, it is the attorney’s duty to contest for that which his duty to another client requires him to oppose or when possibility of such situation will develop.

2. Invitation of Suspicion - Whether the acceptance of the new relation will prevent a lawyer from the full discharge of his duty of undivided fidelity and loyalty to his client or will invite suspicion of unfaithfulness or double-dealing in the performance thereof.

3. Use of Prior Knowledge Obtained - Whether a lawyer will be called upon in his new relation to use against the first client any knowledge acquired in the previous employment.

Q: What are the types of conflict of interest? A: 1. Concurrent or multiple representations –

Generally occurs when a lawyer represents clients whose objectives are adverse to each other, no matter how slight or remote such adverse interest may be.

The tests for concurrent or multiple representations are: a. Whether a lawyer is duty-bound to fight

for an issue or claim in behalf of one client and, at the same time, to oppose that claim for the other client;

b. Whether the acceptance of a new

relation would prevent the full discharge of the lawyer’s duty of undivided fidelity or loyalty to the client;

c. Whether the acceptance of new relation would invite suspicion of unfaithfulness or double-dealing in the performance of the lawyer’s duty of undivided fidelity and loyalty; and

d. Whether, in the acceptance of a new

relation, the lawyer would be called upon to use against a client confidential information acquired through their connection.

Rule 15.01, Canon 15, CPR - A lawyer, in conferring with a prospective client, shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client.


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2. Sequential or successive representation – Involves representation by a law firm of a present client who may have an interest adverse to a prior or former client of the firm. (CPR Annotated, PhilJA)

Note: What is material in determining whether there is a conflict of interest in the representation is probability, not certainty of conflict.

Illustration: Existence of conflict of Interest

1. A v. B A and B are present clients

2. C v. D; E v. D

C is the present client and D is not a present client in the same case but is a present client in another case

3. F v. G; H v. G

F is the present client and G was a former client and the cases are related

4. I v. J; K v. J

I is the present client and J was a former client in a case that is unrelated.

5. L, M, N v. O, P, Q

L, M, N are present clients but L and M joins O, P, Q (People v. Davis)

Q: What are the other instances of conflict of interests? A:

1. A corporate lawyer cannot join a labor union of employees in that corporation;

2. A lawyer of an insurance corporation who investigated an accident cannot represent the complainant/injured person;

3. As a receiver of a corporation, he cannot represent the creditor;

4. As a representative of the obligor, he cannot represent the obligee; and

5. As a lawyer representing a party in a compromise agreement, he cannot, subsequently, be a lawyer representing another client who seeks to nullify the agreement.

Q: Petitioner and his father went to the residence of private respondent to seek his advice regarding the problem of the alleged indebtedness of petitioner's brother to Caesar's Palace, a well-known gambling casino at Las Vegas, Nevada, U.S.A. Private respondent assured petitioner and his father that he would inquire into the matter, after which his services

were reportedly contracted for P100,000. 00. Several long distance telephone calls and two trips to Las Vegas by him elicited the information that indeed petitioner’s brother has an outstanding account to Caesar’s but further investigations, however, revealed that said account had actually been incurred by Ramon Sy, with petitioner’s brother merely signing for the chits. Private respondent personally talked with the president of Caesar's Palace and convinced the latter’s president to go after Sy instead to which the latter agreed with the condition that private respondent should first convince Sy to pay the indebtedness to which respondent succeeded. He was able to free petitioner’s brother from his indebtedness. Having thus settled the account of petitioner's brother, private respondent sent several demand letters to petitioner demanding the balance of P50,000.00 as attorney's fees. Petitioner, however, ignored these, thus, private respondent filed a complaint against petitioner for the collection of attorney's fees and refund of transport fare and other expenses. Petitioners claimed, that at the time private respondent was rendering services to petitioner, he was actually working "in the interest" and "to the advantage" of Caesar's Palace of which he was an agent and a consultant. This being the case, private respondent is not justified in claiming that he rendered legal services to petitioner in view of the conflicting interests involved. Did the respondent violate the conflict of interest rule? A: No. Generally, an attorney is prohibited from representing parties with contending positions. However, at a certain stage of the controversy before it reaches the court, a lawyer may represent conflicting interests with the consent of the parties. A common representation may work to the advantage of said parties since a mutual lawyer, with honest motivations and impartially cognizant of the parties' disparate positions, may well be better situated to work out an acceptable settlement of their differences, being free of partisan inclinations and acting with the cooperation and confidence of said parties. A lawyer is entitled to have and receive the just and reasonable compensation for services rendered at the special instance and request of his client and as long as he is honestly and in good faith trying to serve and represent the interests of his client, the latter is bound to pay his just fees. (Dee v. Court of Appeals, G.R. No. 77439, August 24, 1989)


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Q: Can a lawyer engaged by a corporation defend members of the board of the same corporation in a derivative suit?

A: No. The interest of the corporate client is paramount and should not be influenced by any interest of the individual corporate officials. A lawyer engaged as counsel for a corporation cannot represent members of the same corporation's board of directors in a derivative suit brought against them. To do so would be tantamount to representing conflicting interests, which is prohibited by the Code of Professional Responsibility. (Hornilla v. Atty. Salunat, A.C. No. 5804, July 1, 2003) Q: Six months ago, Atty. Z was consulted by A, about a four-door apartment in Manila left by her deceased parents. A complained that her two siblings, B and C, who were occupying two units of the apartment, were collecting the rentals from the other two units and refusing to give her any part thereof. Atty. Z advised A to first seek the intervention of her relatives and told her that if this failed, he would take legal action as A asked him to do. B asks Atty. Z to defend him in a suit brought by A against him (B) and C through another counsel. Should Atty. Z accept the case? A: No. When A consulted him about her complaint against B and C, a lawyer-client relationship was created between A and Atty. Z. Atty. Z cannot subsequently represent B against A in a matter he was consulted about. This constitutes conflict of interest. It does not matter if Atty. Z is not handling the case for A.

Q: Should Atty. Z tell B that A consulted him earlier about the same case? Why?

A: Yes. Rule 21.07 of the CPR provides that “a lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.” In this case, he has to reveal to B that he had been consulted by A on the case that B if offering to retain his services, in order to avoid a possible conflict of interest. (2002 Bar Question)

GR: An attorney cannot represent diverse interests. It is highly improper to represent both sides of an issue. The proscription against representation of conflicting interest finds application where the conflicting interest arise with respect to the same general matter and is applicable however slight such adverse interest may be. It applies although the attorney’s intention and motives were honest and he acted in good faith.

XPN: Representation of conflicting interest may be allowed where the parties consent to the representation after full disclosure of facts. (Nakpil v. Valdez, A.C. No. 2040, Mar. 4, 1998)

Note: A lawyer may at a certain stage of the controversy and before it reaches the court represent conflicting interests with the express written consent of all parties concerned given after disclosure of the facts. The disclosure should include an explanation of the effects of the dual representation, such as the possible revelation or use of confidential information.

An attorney owes loyalty to his client not only in the case in which he has represented him but also after relation of attorney and client has terminated.

Q: What are the instances when a lawyer may not represent conflicting interests despite consent of both parties concerned? A: Where the conflict is:

1. Between the attorney’s interest and that of a client; or

2. Between a private client’s interests and that of the government or any of its instrumentalities.

Q: What are the effects of representing adverse interests? A: DJ-FAC

1. Disqualification as counsel of new client on petition of former client;

2. Where such is unknown to, and becomes prejudicial to the interests of the new client, a Judgment against such may, on that ground, be set aside;

3. The attorney’s right to Fees may be defeated if found to be related to such conflict and such was objected to by the former client, or if there was a concealment and prejudice by reason of the attorney’s previous professional relationship with the opposite party;

Rule 15.03, Canon 15, CPR – A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.


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4. A lawyer can be held Administratively liable through disciplinary action and may be held Criminally liable for betrayal of trust.

Q: Huey Company and Dewey Corporation are both retainer clients of Atty. Anama. He is the corporate secretary of Huey Company. He represents Dewey Corporation in three pending litigation cases. Dewey Corporation wants to file a civil case against Huey Company and has requested Atty. Anama to handle the case. What are the options available to Atty. Anama? Explain your answer. A:

1. To decline to accept the case because to do so will constitute representing conflicting interests. It is unethical for a lawyer to represent a client in a case against another client in the same case.

2. To accept to file the case against Huey

Company, after full disclosure to both retained clients and upon their express and written consent. The written consent may free him from the charge of representing conflicting interests, because written consent amounts to a release by the clients of the lawyer’s obligation not to represent conflicting interests.

Q: If you were Atty. Anama, which option would you take? Explain.

A: If I were Atty. Anama, I will choose the first option and inhibit myself in the case as both entities are my clients. The conflict of interests between the contending clients may reach such a point that, notwithstanding their consent to the common representation, the lawyer may be suspected of disloyalty by one client. His continuing to act in a double capacity strikes deeply in the foundation of the attorney-client relationship. Q: Atty. Sagucio was the former Personnel Manager and Retained Counsel of Taggat Industries Inc. until his appointment as Assistant Provincial Prosecutor of Tuguegarao. Taggat Industries was sequestered by the PCGG and thus ceased its operations. As Assistant Provincial Prosecutor, he assigned to conduct the preliminary investigation over a criminal case filed against Taggat Industries. He recommended the filing of 651 informations for violation of the Labor Code. He was charged for violating Rule 15.03 of the Code of Professional

Responsibility and for defying the prohibition against private practice of law while working as government prosecutor. Is Atty. Sagucio guilty of engaging in private practice of law while working as an Assistant Provincial Prosecutor? A. Yes. “Private practice of law” contemplates a succession of acts of the same nature habitually or customarily holding one’s self to the public as a lawyer. Atty. Sagucio admitted that he rendered his legal services to complainant while working as a government prosecutor. Even the receipts he signed stated that the payments by Taggat were for “Retainer’s fee.” Thus, as correctly pointed out by complainant, Atty. Sagucio clearly violated the prohibition in RA 6713. Atty. Sagucio’s violation of RA 6713 also constitutes a violation of Rule 1.01 of Canon 1, which mandates that “*a+ lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.” His admission that he received from Taggat fees for legal services while serving as a government prosecutor is an unlawful conduct, which constitutes a violation of Rule 1.01. (Lim-Santiago v. Saguico, A.C. No. 6705, March 31,2006) Note: Violations of RA 6713 are not subject to disciplinary action under the Code of Professional Responsibility unless the violations also constitute infractions of specific provisions of the Code of Professional Responsibility. Certainly, the IBP has no jurisdiction to investigate violations of RA 6713 – the Code of Conduct and Ethical Standards for Public Officials and Employees – unless the acts involved also transgress provisions of the Code of Professional Responsibility.

Note: Where the lawyer performs the function of mediator, conciliator, or arbitrator in disputes where the lawyer labors under a conflict of interest, he remains subject to the requirement of a prior written informed consent from all parties concerned. The requirement subsists even if the adverse interest is very slight, and notwithstanding the lawyer’s honest intention and motive. (CPR Annotated, PhilJA)

Rule 15.04, Canon 15, CPR – A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes.


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d. Candid and Honest Advice to Clients

Note: The lawyer must temper his client’s propensity to litigate. (Cobb-Perez v. Lantin, No. L-22320, July 29, 1968) As officers of the court, counsels are under obligation to advice their clients against making untenable and inconsistent claims. The counsel should inform his client and dissuade him from filing the case if it is totally devoid of merit. If he finds that his client’s cause is fairly meritorious and ripe for judicial adjudication, he should refrain from making bold and confident assurance of success.

Q: Consorcia Rollon went to the office of Atty. Camilo Naraval to seek his assistance in a case filed against her by Rosita Julaton for Collection of Sum of Money with Prayer for Attachment. After going over the documents she brought with her, Atty. Naraval agreed to be her lawyer and she was required to pay P8,000.00 for the filing and partial service fee.

Atty. Naraval did not inform her that the said civil suit has been decided against her and which judgment has long become final and executory. Atty. Naraval was not able to act on the case. Because of this, Rollon wanted to withdraw the amount she has paid and to retrieve the documents pertaining to said case. Unfortunately, despite several follow-ups, Atty. Naraval always said that he cannot return the documents because they were in their house, and that he could not give her back the P8,000.00 because he has no money. Did Atty. Naraval fail to fulfill his undertakings?

A: Yes. Despite his full knowledge of the finality based on the documents furnished to him, Atty. Naraval withheld such vital information and did not properly appraise Rollon. He should have given her a candid and honest opinion on the merits and the status of the case. But he withheld such vital information. He did not inform her about the finality of the adverse judgment. Instead, he demanded P8,000 as “filing and service fee” and thereby gave her hope that her case would be acted upon.

Rule 15.05 of the Code of Professional Responsibility requires that lawyers give their candid and best opinion to their clients on the merit or lack of merit of the case, neither overstating nor understating their evaluation thereof.

Knowing whether a case would have some prospect of success is not only a function, but also an obligation on the part of lawyers. If they find that their client's cause is defenseless, then it is their bounden duty to advise the latter to acquiesce and submit, rather than to traverse the incontrovertible. (Rollon v. Naraval, A.C. No. 6424, Mar. 4, 2005) Note: As officers of the court, counsels are under the obligation to advise their client against making untenable and inconsistent claims. Lawyers are not merely hired employees who must unquestionably do the bidding of the client, however unreasonably this may be when tested by their own expert appreciation of the facts and applicable law and jurisprudence. COUNSEL MUST COUNSEL. (G.R. No. 91298, June 22, 1990).

Q: A Criminal Case was for Perjury and initiated by the complainant's wife, Leni. This complaint arose from the alleged untruthful statements or falsehoods in the complainant's Petition for Naturalization. In due course, an information was filed in MCTC charging the complainant herein with perjury allegedly committed. it was alleged that the accused knew that his wife and children were not residing at the said address stated in his petition, having left 5 years earlier. The accused was also alleged to be carrying out an immoral and illicit relationship. After trial, the Judge Tiongson rendered judgment and found the complainant herein guilty beyond reasonable doubt of the crime of perjury. Thus, Judge Chiongson was charged with grave misconduct, gross bias and partiality and having knowingly rendered an unjust judgment in said criminal case. Complainant alleged that the said judge failed to divulge the next-door-neighbor relationship between him and the family of Leni and to disqualify himself from sitting in the said case. Is respondent judge guilty for not disqualifying himself from the said case? A: No. As to the respondent Judge's being a next-door neighbor of the complainant's wife the complainant in the perjury case it must be stressed that that alone is not a ground for either a mandatory disqualification under the first paragraph or for a voluntary disqualification

Rule 15.05, Canon 15,CPR - A lawyer when advising his client, shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understating the prospects of the case.


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under the second paragraph of Section 1, Rule 137 of the Rules of Court. In any event, the complainant has failed to disclose in his complaint that he had raised this matter at any time before the rendition of the judgment. In fact, the summary of the grounds of his motion for reconsideration in the respondent's order denying the said motion does not include this matter. (Choa v. Chiongson, A.M. No. MTJ-95-1063, February 9, 1996)

Note: this rule is known as INFLUENCE-PEDDLING. It is improper for a lawyer to show in any way that he has connections and can influence any tribunal or public official, judges, prosecutors, congressmen and others, especially so if the purpose is to enhance his legal standing and to entrench the confidence of the client that his case or cases are assured of victory.

Q: In a case for inhibition filed against Judge Paas, it was found that her husband, Atty. Renerio Paas, was using his wife's office as his office address in his law practice. Judge Paas admitted that Atty. Paas did use her office as his return address for notices and orders in 2 criminal cases, lodged at the Pasay City RTC, but only to ensure and facilitate delivery of those notices, but after the cases were terminated, all notices were sent to his office address in Escolta. Was Atty. Paas’ act of using his wife’s office as his office address unprofessional and dishonorable?

A: Yes. By allowing Atty. Paas to use the address of her court in pleadings before other courts, Judge Paas had indeed allowed her husband to ride on her prestige for the purpose of advancing his private interest.

Atty. Paas is guilty of simple misconduct because of using a fraudulent, misleading, and deceptive address that had no purpose other than to try to impress either the court in which his cases are lodged, or his client, that he has close ties to a member of the judiciary, in violation of the Code of Professional Responsibility.

The need for relying on the merits of a lawyer's case, instead of banking on his relationship with a member of the bench which tends to influence or gives the appearance of influencing the court, cannot be overemphasized. It is unprofessional and dishonorable, to say the least, to misuse a

public office to enhance a lawyer's prestige. Public confidence in law and lawyers may be eroded by such reprehensible and improper conduct. (Paas v. Almarvez, A.M. No. P-03-1690, Apr. 4, 2003)

Q: Nicanor Gonzales and Salud Pantanosas were informed by the Register of Deeds that their owner's duplicate of title covering their lands were entrusted to the office secretary of Atty. Miguel Sabacajan, who in turn entrusted the same to said attorney. The latter admitted that the titles are in his custody and has even shown the same to the two. When demanded to make delivery of said titles, he refused saying that he was holding the certificates of title in behalf of his client, Samto Uy, one of his clients who apparently has monetary claims against Nicanor and Salud. He even challenged the complainants to file any case in any court even in the Honorable Supreme Court. Did Atty. Sabacajan defy legal and moral obligations emanating from his professional capacity as a lawyer? A: Yes. As a lawyer, he should know that there are lawful remedies provided by law to protect the interests of his client. Atty. Sabacajan has not exercised the good faith and diligence required of lawyers in handling the legal affairs of their clients. If Nicanor and Salud did have the alleged monetary obligations to his client, that does not warrant his summarily confiscating their certificates of title since there is no showing in the records that the same were given as collaterals to secure the payment of a debt. Neither is there any intimation that there is a court order authorizing him to take and retain custody of said certificates of title. Apparently, Atty. Sabacajan has disregarded Canon 15, Rule 15.07 of the Code of Professional Responsibility which provides that a lawyer shall impress upon his client the need for compliance with the laws and principles of fairness. Instead, he unjustly refused to give to Gonzales and Pantanosas their certificates of titles supposedly to enforce payment of their alleged financial obligations to his client and presumably to impress the latter of his power to do so. (Gonzales v. Sabacajan, A.C. No. 4380, Oct. 13, 1995)

Rule 15.06, Canon 15, CPR - A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body. (influence peddling)

Rule 15.07, Canon 15, CPR. - A lawyer shall impress upon his client compliance with the laws and the principles of fairness.


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Q: Maria Cielo Suzuki entered into contracts of sale and real estate mortgage with several persons. The sale and mortgage transactions were facilitated by Atty. Erwin Tiamson, counsel of the sellers. Suzuki paid P80,000 as her share in the expenses for registration. He retained in his possession the subject deeds of absolute sale and mortgage as well as the owner's copy of the title. However, he never registered the said documents and did not cause the transfer of the title over the subject property in the name of Suzuki. Atty. Tiamson said that he did not register the deed of sale to protect the interest of his client and even if the same has been registered, he cannot give him the owner's duplicate copy until purchase price for the subject property has been fully paid and the real estate mortgage cancelled. Is Atty. Tiamson justified in not registering the transaction?

A: No. Rule 15.07 obliges lawyers to impress upon their clients compliance with the laws and the principle of fairness. To permit lawyers to resort to unscrupulous practices for the protection of the supposed rights of their clients is to defeat one of the purposes of the State, the administration of justice. While lawyers owe their entire devotion to the interest of their clients and zeal in the defense of their client's right, they should not forget that they are, first and foremost, officers of the court, bound to exert every effort to assist in the speedy and efficient administration of justice. The client's interest is amply protected by the real estate mortgage executed by complainant. Thus, Atty. Tiamson failed to live up to this expectation. (Suzuki v. Tiamson, A.C. No. 6542, Sept. 30, 2005)

Rationale: Intended to avoid confusion; it is for the benefit of both the client and the lawyer (Funa, 2009). Note: The lawyer should inform the client when he is acting as a lawyer and when he is not, because certain ethical considerations governing the client- lawyer relationship may be operative in one case and not in the other. (Report of the IBP Committee, p.84)

A party’s engagement of his counsel in another capacity concurrent with the practice of law is not prohibited, so long as the roles being assumed by

such counsel is made clear to the client. (New Sampaguita Builder Construction, Inc. v. Philippine National Bank, G.R. No. 148753, July 30, 2004)

3. CLIENT’S MONEYS AND PROPERTIES

Note: Money collected by the lawyer on a judgment favorable to his client constitute trust funds and should be immediately paid over to the client. While Section 37, Rule 138 of the Rules of Court grants the lawyer a lien upon the funds, documents and papers of his client, which have lawfully come into his possession, such that he may retain the same until his lawful fees and disbursements have been paid, and apply such funds to the satisfaction thereof, the lawyer still has the responsibility to promptly account to his client for such moneys received. Failure to do so constitutes professional misconduct. The lawyer’s failure to turn over such funds, moneys, or properties to the client despite the latter’s demands give rise to the presumption that the lawyer had converted the money for his personal use and benefit. This failure also renders the lawyer vulnerable to judicial contempt under Section 25, Rule 138 of the Rules of Court. (CPR Annotated, PhilJA)

Q: Luis de Guzman as defendant in a civil case, obtained an adverse judgment. His counsel was Atty. Emmanuel Basa. He wants to challenge the decision through a petition for certiorari. It was agreed that Luis will pay P15,000 for said legal service. Atty. Basa collected a down payment of P5,000. However, no such petition was filed. He did not seasonably file with the CA the required appellant’s brief resulting in the dismissal of the appeal. Despite several extensions to file the appellant’s brief, Atty. Basa failed to do so. Instead, he filed two more motions for extension. When he filed the appellant’s brief, it was late, being beyond the last extension granted by the appellate court. Was Atty. Emmanuel Basa negligent in the performance of his professional duty to Luis de Guzman? A: Yes, he is guilty of gross misconduct. Where a

Rule 15.08, Canon 15, CPR. - A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity.

CANON 16, CPR - A LAWYER SHALL HOLD IN TRUST ALL

MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS POSSESSION.

(2008 Bar Question)


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client gives money to his lawyer for a specific purpose, such as to file an action or appeal an adverse judgment, the lawyer should, upon failure to take such step and spend the money for it, immediately return the money to his client. His unjustified withholding of Luis’ money is a gross violation of the general morality and professional ethics. (De Guzman v. Atty. Emmanuel Basa, A.C. No. 5554, June 29, 2004) Q: Is a lawyer prohibited from acquiring properties of his client? A: Yes, pursuant to Canon 16 of the Code of Professional Responsibility. Furthermore, Article 1491 of the Civil Code states that: “The following persons cannot acquire or purchase, even at public or judicial auction, either in person or through the mediation of another: xxx (5) lawyers, with respect to the property and rights which may be the object of any litigation in which they take part by virtue of their profession.” Note: This prohibition is entirely independent of fraud and such need not be alleged or proven. Art. 1491 (5) of the NCC applies only if the sale or assignment of the property takes place during the pendency of the litigation involving the client’s property. (Ramos v. Ngaseo, A.C. No. 6210, Dec. 9, 2004)

Q: What are the elements of prohibition against the purchase of property in litigation under Art. 1491 of the NCC? A:

1. There is an attorney-client relationship 2. The property is in litigation 3. The attorney is the counsel of record in

the case; and 4. The attorney, by himself or through an

agent, purchases such property during the pendency of said case.

Q: What are the instances where the rule under Article 1491 of NCC is inapplicable? A:

1. Where the property purchased by the lawyer was not involved in the litigation;

2. Where the sale took place before it became involved in the suit;

3. Where the attorney at the time of the purchase was not the counsel in the case;

4. Where the purchaser of the property in litigation was a corporation even though the attorney was an officer thereof;

5. Where the sale took place after the termination of the litigation;

6. A lawyer may accept an assignment from his client of a money judgment rendered in the latter’s favor in a case in which he was not counsel, in payment of his professional services performed in another case;

7. In a contract for attorney’s fees contingent upon the outcome of the litigation (contingent fee arrangement); and

8. When any of the four elements of Art. 1491 is missing.

Q: what are the effects of violation of such provision? A:

1. Malpractice on the part of the lawyer and may be disciplined for misconduct;

2. Transaction is null and void.

a. Fiduciary Relationship

Note: A lawyer must be scrupulously careful in handling money entrusted to him in his professional capacity, because of the high degree of fidelity and good faitn expected on his part. (Medina v. Bautista, A.C. No. 190, September 1964)

Q: What is the nature of attorney-client relationship? A: An attorney-client privilege is highly fiduciary as it is founded on trust and confidence where the lawyer acts as the trustee and the client acting as trustor in regard to the matter subject of the professional engagement.( Antiquiera, 2007) Q: X sought assistance to the president of the IBP to enable him to talk to Atty. U who had allegedly been avoiding him for more than a year. Atty. U failed to turn–over to his client the amount given to him by X as settlement for a civil case. Is Atty. U guilty for violating Canon 16 of the Code of Professional Responsibility?

Rule 16.01, Canon 16,CPR - A lawyer shall account for all money or property collected or received for or from the client.


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A: Yes. The Code of Professional Responsibility mandates every lawyer to hold in trust all money and properties of his client that may come into his possession. A lawyer’s failure to return upon demand the funds or property held by him on behalf of his client gives rise to the presumption that he has appropriated the same for his own use to the prejudice of, and in violation of the trust reposed in him by, his client. The relation between attorney and client is highly fiduciary in nature. Being such, it requires utmost good faith, loyalty, fidelity and disinterestedness on the part of the attorney. Its fiduciary nature is intended for the protection of the client. For misappropriating and failing to promptly report and deliver the money report and deliver the money received on behalf of their children of their clients, some lawyers have been disbarred while others have been suspended for six months. Since it appears to be the first case of respondent lawyer, the lighter penalty is imposed on him. (Espiritu vs. Ulep, A.C. No. 5808, May 4,2005) Q: What is fiduciary duty? A: The principle that an attorney derives no undue advantage that may operate to the prejudice or cause an occasion for loss of a client. The relationship between the lawyer and client is one of mutual trust and confidence of the highest degree. Q: When will the liability of a lawyer for “breach of fiduciary obligation” arise? A: A lawyer may be held liable if he fails in his obligation to make an accounting of funds or property that may come to his possession for a lawyer holds his client’s funds or property in trust for his client.

Q: What are the requisites for the liability of a lawyer for damages? A: AWI

1. Attorney-client relationship; 2. Want of reasonable care and diligence by

lawyer; and 3. Injury sustained by client as a proximate

result of the lawyer’s negligence. Q: When will civil liability arise? A:

1. Client is prejudiced by lawyer's negligence or misconduct;

2. Breach of fiduciary obligation; 3. Civil liability to third persons;

4. Libelous words in pleadings; violation of communication privilege;

5. Liability for costs of suit (treble costs) – when lawyer is made liable for insisting on client's patently unmeritorious case or interposing appeal merely to delay litigation.

Q: What are the effects of lawyer’s failure to return client’s money or property after demand? A:

1. There will be a presumption that the lawyer misappropriated the same;

2. It will give rise to civil liability of the lawyer;

3. Criminal liability; and 4. Administrative liability.

Q: When is a lawyer not liable for libelous words in the pleadings? A: A lawyer is exempted from liability for slander, libel or for words otherwise defamatory, published in the course of judicial proceedings, provided the statements are connected with, relevant, pertinent and material to the cause in hand or subject of inquiry. Note: Test of relevancy – The matter to which the privilege does not extend must be palpably wanting in relation to the subject of controversy, that no reasonable man can doubt its relevancy or propriety. Pleadings should contain plain and concise statements of material facts and if pleader goes beyond requisites of law and alleges irrelevant matter, which is libelous, he loses his privilege and may be liable in a separate suit.

Q: When will criminal liability exist? A: A lawyer may be held criminally liable if he commits any of the following:

1. Causing prejudice to the client thru malicious breach of professional duty or thru inexcusable negligence or ignorance;

2. Revealing client’s secrets learned in lawyer’s professional capacity thru malicious breach of professional duty or inexcusable negligence or ignorance;

3. A lawyer who has undertaken the defense of a client or has received confidential information from said client in a case may be criminally liable for undertaking defense of opposing party in same cause without consent of first client; (Art. 209, RPC)


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4. A lawyer who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with intent to cause such damage, shall use any false document may be held criminally liable therefor; (Art. 172, RPC) and

5. A lawyer who misappropriates his client’s funds may be held liable for estafa.

Note: When a lawyer collects or receives money from his client for a particular purpose, he should promptly account to the client how the money was spent. His failure either to render an accounting or to return the money (if the intended purpose of the money does not materialize) constitutes a blatant disregard of Rule 16.01 of the CPR.(Belleza v. Malaca, A.C. No. 7815, July 23, 2009) Note: If a lawyer does not use the money for the intended purpose, the lawyer must immediately return the money to the client. (Villanueva v. Gonzales, A.C. No. 7657, February 12, 2008)

b. Co-Mingling of Funds

Note: Failure of the lawyer to account all the funds and property of his client which may come into his possession would amount to misappropriation which may subject him to disbarment on the ground of grave misconduct or a criminal prosecurion for estafa under Art. 315, par. 1(b) of the RPC.

Q: BPI filed two complaints for replevin and damages against Esphar Medical Center Inc. and its president Cesar Espiritu. Espiritu engaged the services of Atty. Juan Cabredo IV. While these cases were pending in court, the latter advised Esphar to remit money and update payments to the bank through the trial court. Accordingly, Esphar's representative delivered a total of P51,161 to Atty. Cabredo's office. However, the management of Esphar found out that he did not deliver said money to the court or to the bank.

Did Atty. Cabredo commit a breach of trust?

A: Yes. His act amounted to deceit in violation of his oath. The relationship between a lawyer and a client is highly fiduciary; it requires a high degree of fidelity and good faith. Hence, in dealing with trust property, a lawyer should be very scrupulous. Money or other trust property of the client coming into the possession of the lawyer

should be reported by the latter and account any circumstances, and should not be commingled with his own or be used by him. (Espiritu v. Cabredo, A.C. No. 5831, Jan. 13, 2003) Q. Atty. Magulta received 25,000 pesos from complainant for filing fees of a civil case to be filed. However, Atty. Magulta never filed the complaint. When complainant discovered this, he filed a a complaint for disbarment against the counsel. Should Atty. Magulta be held liable for the appropriation of funds in his own purposes? A: Yes. In failing to apply to the filing fee the amount given by complainant -- as evidenced by the receipt issued by the law office of Atty. Magulta -- the latter also violated the rule that lawyers must be scrupulously careful in handling money entrusted to them in their professional capacity. Rule 16.01 of the Code of Professional Responsibility states that lawyers shall hold in trust all moneys of their clients and properties that may come into their possession. Lawyers who convert the funds entrusted to them are in gross violation of professional ethics and are guilty of betrayal of public confidence in the legal profession. It may be true that they have a lien upon the client’s funds, documents and other papers that have lawfully come into their possession; that they may retain them until their lawful fees and disbursements have been paid; and that they may apply such funds to the satisfaction of such fees and disbursements. However, these considerations do not relieve them of their duty to promptly account for the moneys they received. Their failure to do so constitutes professional misconduct. In any event, they must still exert all effort to protect their client’s interest within the bounds of law. (Burbe vs. Magulta, A.C. No. 5713, June 10,2002)

c. Delivery of Funds

Rule 16.02, Canon 16, CPR - A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.

Rule 16.03, Canon 16, CPR - A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.


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Q. May a counsel unilaterally retain or appropriate funds of his client as his attorney’s lien? A: No. A counsel has no right to retain or appropriate unilaterally as lawyer’s lien any amount belonging to his client which may come into his possession. (Cabigao v. Rodrigo, August 9,1932) Note: While this rule provides that the lawyer has the right to retain the funds of his client as may be necessary to satisfy his lawful fees and disbursements known as attorney’s lien and his lien to the same extent on all judgments and executions he has secured for his client called charging lien, he is still dutybound to render an accounting of his client’s funds and property which may come into his possession in the course of his professional employment In the application of attorney’s lien, a lawyer shall give notice to his client otherwise, the same might be construed as misappropriation which may subject him to disciplinary action. (Antiquiera, 2007)

Q. Marquez retained the professional service of Meneses to prosecute a claim against Ruth Igdanes and Delfin Igdanes. The oral agreement was that Marquez would pay a fee of P100.00 to Meneses, whether the case was won or lost. Thereafter, Marquez advanced from time to time to Meneses various sums as fees, which totalled P75.00. When decision was rendered by the court in favor of the Marquez, Igdanes was ordered to pay Marquez the claimed amount with legal interest from the filing of the complaint until fully paid, and P75.00 as attorneys fees. Marquez’s brother informed her that the sheriff informed him that Meneses respondent had gotten all of the P75.00 as his fees. Marquez wrote to Meneses twice asking him to send her P50.00 and to keep P25.00 for himself, but Meneses refused to give her the P50.00 she was asking and contended that that was their agreement. Marquez’s contention, in brief, is that she had been overcharged by Meneses for as the agreed fee was P100.00, win or lose, and she had already paid P75.00 to Meneses, the latter simply had the right, at most, to keep P25.00 out of the P75.00 he had gotten from the sheriff. Should Atty. Meneses be held liable for not giving the money to his client? A: Yes. It is well-settled that money collected by a lawyer in pursuance of a judgment in favor of his client is money held in trust and must be immediately turned over to the latter.Canon 11 of

the Canons of Professional Ethics, in force at the time material to this case, provides that the lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client. Money of the client or collected for the client or other trust property coming into the possession of the lawyer should be reported and accounted for promptly and should not under any circumstances be commingled with his own or be used by him. In this case, Meneses should have made an accounting with his client of the amount he received, deducted the balance of the attorneys fees due him, and turned over the rest of the amount to his client. As the Solicitor General observed, if Meneses was mindful of his ethics, he should at least have waited until the judgment debtor in Civil Case No. 82 had made further payments on the amount adjudged against them... By placing his personal interest above his clients cause, respondent clearly breached the trust reposed upon him. (Marquez v. Meneses, Adm. Case No. 675, December 17, 1999) Q: Fernandez engaged the services of Atty. Cabrera II to handle the cases of her associates in Baguio City. After taking hold of the records of the cases that Fernandez entrusted to him and after getting initially paid for the services he would render, Atty. Cabrera II suddenly disappeared and could no longer be located in his given address or in the addresses that Fernandez gathered.

Did Atty. Cabrera II violate the Code of Professional Responsibility when he accepted the records and money of the complainant and thereafter failed to render his services?

A: Yes. Acceptance of money from a client establishes an attorney-client relationship and gives rise to the duty of fidelity to the client's cause. The canons of professional responsibility require that once an attorney agrees to handle a case, he should undertake the task with zeal, care, and utmost devotion. Atty. Cabrera's action projects his appalling indifference to his client's cause and a brazen disregard of his duties as a lawyer. Not only did he fail to render service of any kind, he also absconded with the records of the cases with which he was entrusted. Then to top it all, he kept the money complainant paid to him. Such conduct is unbecoming of a member of the bar, for a lawyer's professional and personal conduct


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must at all times be kept beyond reproach and above suspicion. The duty of a lawyer is to uphold the integrity and dignity of the legal profession at all times. This can only be done by faithfully performing the lawyer's duties to society, to the bar, to the courts and to his clients. (Fernandez v. Atty. Cabrera II, A.C. No. 5623, Dec. 11, 2003)

d. Borrowing or Lending

Q: Is a lawyer allowed to borrow money from his client? A: GR: No.

XPN: Unless the client’s interests are fully protected by the nature of the case or by independent advice.

Note: While the lawyer may borrow money from his client, where the client’s interests are fully protected by the nature of the case he is handling for the client, or by independent advice from another lawyer, he should not abuse the client’s confidence by delaying payment. (Alindogan v. Geron, G.R. Admin. Case No. 221, May 21, 1958).

Q: Is a lawyer allowed to lend money from his client? A: GR: No.

XPN: when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client.

Note: Prohibition from lending is intended to assure the lawyer’s independent professional judgment, for if the lawyer acquires a financial interest in the outcome of the case the free exercise of his judgment may be adversely affected. (Agpalo, 2004; Comment of IBP Committee that drafted the Code, p.90)

Q: Atty Lozada was the retained counsel and legal adviser of Frias to which all documents and titles of properties of the latter were entrusted to. Atty Lozada persuaded Frias to sell her house, the former acting as broker since she was in need of money. Dra. San Diego, the prospective buyer then handed 2 million in cash

and 1 million in check and out of the 2 million, Atty. Lozada took 1 million as her commission without Frias’ consent. When Dra. San Diego backed out from the sale, Frias tried to recover from Atty. Lozada the title to the property and other documents but Atty. Lozada started avoiding her. Dra. San Diego filed a case against Frias to return the 3 million she paid plus interest. Frias claimed that her failure to return the money was because of Atty. Lozada’s refusal to give back the 1 million she took as commission. A case was filed by Frias against Atty. Lozada but despite the favourable decision, respondent refused to return the money. Atty. Lozada claimed that since she did not have enough money, Frias requested her to sell or mortgage the property and offered her a loan, commission and attorney’s fees on the basis of the selling price. He denied that Frias previously demanded the return of 1million until the civil case against her was instituted in which she expressed her willingness to pay the 900,000 plus agreed interest. Did Atty. Lozada committed a violation of the Code of Professional Responsibility in asking for a loan from her client? A: Yes. Her act of borrowing money from a client was a violation of Canon 16.04 of the Code of Professional Responsibility. A lawyer’s act of asking a client for a loan, as what respondent did, is very unethical. It comes within those acts considered as abuse of client’s confidence. The canon presumes that the client is disadvantaged by the lawyer’s ability to use all the legal manoeuverings to renege on her obligation. (Frias v. Lozada, A.C. NO. 6656, December 13,2005) Note: The principle behind Rule 16.04 is to prevent the lawyer from taking advantage of his influence over the client or to avoid acquiring a financial interest in the outcome of the case. Not prohibited: advances for necessary expenses.

4. FIDELITY TO CLIENT’S CAUSE

Rule 16.04, Canon 16, CPR - A lawyer shall not borrow money from his client unless the client's interest are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client.

CANON 17, CPR - A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED

IN HIM. (2007, 2008 Bar Questions)


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Note: Loyalty to a client does not require a lawyer to adopt a client’s political, social and economic views, or refrain from a political activity that maybe in opposition to a client’s position.

Q: When does the lawyer’s duty of fidelity to his client’s cause commence? A: Lawyer’s duty of fidelity commences from receipt of his retainer until his effective release from the case or the final disposition of the whole subject matter of the litigation. During that period, he is expected to take such reasonable steps and such ordinary care as his client’s interest may require. (CPR Annotated, PhilJA)

Note: Acceptance of money from a client establishes an attorney-client relationship and gives rise to the duty of fidelity to the client’s cause. Every case accepted by a lawyer deserves full attention, diligence, skill and competence, regardless of importance. (Rollon v. Atty. Naraval, A.C. No. 6424, Mar. 4, 2005)

Q: What are the exceptions to the general rule that the obligation to keep secrets covers only lawful purposes? A:

1. Announcements of a client’s intention to commit a crime;

2. When the client jumped bail and the lawyer knows his whereabouts;

3. When the client is living somewhere under an assumed name; and

4. The communication involves the commission of future fraud or crime.

Q: Genato filed a disbarment case against Atty. Silapan for allegedly breaking their confidential lawyer-client relationship by disclosing confidential information against him. In his answer, Atty. Silapan contended that he used the confidential statements in the course of judicial proceedings in order to defend his case and to discredit Genato’s credibility by establishing his criminal propensity to commit fraud, tell lies and violate the laws. Is Atty. Silapan guilty of breach of trust and confidence by imputing to Genato illegal practices and disclosing Genato’s alleged intention to bribe government officials in connection with a pending case? A: No. It must be stressed that the privilege against disclosure of confidential communications or information is limited only to communications which are legitimately and properly within the scope of a lawful employment of a lawyer. It does

not extend to those made in contemplation of a crime or perpetration of a fraud. If the unlawful purpose is avowed, as in this case, the complainant's alleged intention to bribe government officials in relation to his case, the communication is not covered by the privilege as the client does not consult the lawyer professionally. It is not within the profession of a lawyer to advise a client as to how he may commit a crime as a lawyer is not a gun for hire. Thus, the attorney-client privilege does not attach, there being no professional employment in the strict sense. (Genato v. Atty. Silapan, A.C. No. 4078, July 14, 2003) Q: Schulz, a German national filed a complaint for disbarment against Atty. Flores. He alleged that he engaged the services of Atty. Flores for the purpose of filing a complaint against Ong for revocation of contract and damages. Atty. Flores advised him that there was no need to refer the complaint to barangay conciliation. Three months later, Atty. Flores instructed him to file his complaint with the Lupon Tagapamayapa. Ong refused to appear at the conciliation hearings, arguing that the Lupon had no jurisdiction over his person because he was a resident of another barangay. Thus, Schulz brought the complaint before the barangay in which Ong is a resident. By that time, however, Schulz learned that Ong had already filed a case for specific performance against him. Schulz argued that Atty. Flores’ inordinate delay in acting on his case resulted in his being defendant rather than a complainant against Ong. Is the actuation of Atty. Flores in causing the delay of bringing the dispute under the system of barangay conciliation reprehensible as to warrant the suspension of Atty. Flores? A: Yes. Atty. Flores committed a serious transgression when he failed to exert his utmost learning and ability to give entire devotion to his client's cause. His client had relied upon him to file the complaint with dispatch so that he would not be pre-empted by the adverse party. But he failed him. As a consequence of Att. Flores' indolence, his client was haled to court as a party-defendant. It therefore behoves this Court to wield its corrective hand on this inexcusable infraction which caused undeserved and needless prejudice to his client's interest, adversely affected the confidence of the community in the legal profession and eroded the public's trust in the judicial system. As an attorney, Atty. Flores is sworn to do his level best and to observe full fidelity to the court and his clients. (Schulz v. Atty. Flores, A.C. No. 4219, Dec. 8, 2003)


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Q: Matias Lagramada residing with his uncle, Apolonio Lagramada, was invited by the latter to accompany him to the police station, supposedly to pick up a refrigerator they were to repair. Upon their arrival there, Matias was immediately taken in and locked behind bars. Two informations were filed against him only 10 months after the first day of his incarceration. With the assistance of counsel, Matias pleaded not guilty when arraigned, without raising the invalidity of the arrest. Was the case properly handled? A: No. Lawyers owe fidelity to the cause of their clients and must be mindful of the trust and confidence reposed in them. Matias’ counsel, in the spirit of safeguarding his client’s rights, should have taken the necessary steps to correct the situation. However, he allowed his client to enter a plea during the latter’s arraignment without raising the invalidity of arrest. Thus, the former effectively waived his client’s right to question its validity. Defense counsels are expected to spare no effort to save the accused from unrighteous incarcerations. Matias’ counsel should have not only perfunctorily represented his client during the pendency of the case, but should have kept in mind his duty to render effective legal assistance and true service by protecting the latter’s rights at all times. (People v. Lagramada, G.R. Nos. 146357 & 148170, Aug. 29, 2002)

5. COMPETENCE AND DILIGENCE

Note: Diligence is the attention and care required of a person in a given situation and is the opposite of negligence. It is axiomatic in the practice of law that the price of success is eternal diligence to the cause of the client. (Edquibal v. Ferrer, A.C. No. 5687, Feb. 3, 2005) Note: The Court again reminded lawyers to handle only as many cases as they can efficiently handle. For it is not enough that a practitioner is qualified to handle a legal matter, he is also required to prepare adequately and give the appropriate attention to his legal work. A lawyer owes entire devotion to the cause of his client, warmth and zeal in the defense and maintenance of his rights, and the exertion of his learning and utmost ability that nothing can be

taken or withheld from his client except in accordance with law. (Miwa v. Atty. Medina, A.C. No. 5854, Sept. 30, 2003)

Q: In a criminal case for rape with homicide, the accused pleaded guilty. However, the three PAO lawyers assigned as counsel de oficio did not advise their client of the consequences of pleading guilty; one PAO lawyer left the courtroom during trial and thus was not able to cross-examine the prosecution witnesses. The other postponed the presentation of evidence for the defense, and when he appeared, he said he would rely solely on the plea of guilty, in the belief that it would lower the penalty to reclusion perpetua. Should the three PAO lawyers be disciplined? A: Yes. All three (3) of them displayed manifest disinterest on the plight of their client. They lacked vigor and dedication to their work. Canon 18 of the Code of Professional Responsibility requires every lawyer to serve his client with utmost dedication, competence and diligence. He must not neglect a legal matter entrusted to him, and his negligence in this regard renders him administratively liable. Obviously, in the instant case, the defense lawyers did not protect, much less uphold, the fundamental rights of the accused. Instead, they haphazardly performed their function as counsel de oficio to the detriment and prejudice of the accused Sevilleno, however guilty he might have been found to be after trial. (People v. Sevilleno, G.R. No. 129058, Mar. 29, 1999)

a. Collaborating Counsel

Note: The lawyer’s acceptance is an implied representation that he possesses the academic learning, skill and ability to handle the case.

Q: Who is a Collaborating Counsel? A: Is one who is subsequently engaged to assist a lawyer already handling a particular case for a client. (Pineda, 2009)

CANON 18, CPR – A LAWYER SHALL SERVE HIS CLIENT WITH

COMPETENCE AND DILIGENCE (1998, 2001, 2002, 2005, 2008 Bar

Questions).

Rule 18.01, Canon 18, CPR – A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render. However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter.


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Note: The handling lawyer cannot just take another counsel without the consent of the client. The new lawyer on the other hand cannot just enter his appearance as collaborating counsel without the conformity of the first counsel.(Ibid.) The same diligence required of the first counsel is required of the collaborating counsel. The negligence of the latter is also binding on the client. (Sublay v. NLRC, G.R. No. 130104. January 31, 2000; Pineda 2009)

b. Negligence

Q: What degree of diligence or vigilance is expected from a lawyer? A: The legal profession demands of a lawyer that degree of vigilance and attention of a good father of a family (Lapena, 2009) or ordinary pater familias (Pineda, 2009). He is not required to exercise extraordinary diligence. (Edquibal v. Ferrer, Jr., A.C. No. 5687, February 03, 2005) Note: The attorney’s duty to safeguard the client’s interests commences from his retainer until his effective release from the case or the final disposition of the whole subject matter of the litigation. During the period, he is expected to take such reasonable steps and such ordinary care as his client’s interests may require. A lawyer who received money to handle a client’s case but rendered no service at all shall be subject to disciplinary measure. (Dalisay v. Atty. Mauricio, A.C. No. 5655, April 2005)

Q: When can it be said that a lawyer has been negligent? A: What amounts to carelessness or negligence in a lawyer’s discharge of his duty to client is incapable of exact formulation. It will depend upon the circumstances of the case. Note: Failure to appeal to CA despite instructions by the client to do so constitutes inexcusable negligence on the part of the counsel. (Abiero v. Juanino, A.C. No. 5302, Feb.18, 2005) Note: Even if a lawyer was "honestly and sincerely" protecting the interests of his client, the former still had no right to waive the appeal without the latter's

knowledge and consent. (Abay v. Atty. Montesino, A.C. No. 5718, Dec. 4, 2003) A lawyer has no authority to waive client’s right to appeal. His failure to perfect an appeal within the prescribed period constitutes negligence and malpractice. (Reontoy v. Ibadlit, A.C. CBD No. 190, January 28, 1998)

Q: As an incident in the main case, Velasquez appointed his counsel as attorney-in-fact to represent him at the pre-trial. Counsel failed to appear, hence Velasquez was declared in default. The order of default was received by counsel but no steps were taken to have it lifted or set aside. Decide. A: It is binding on Velasquez who is himself guilty of negligence when, after executing the special power of attorney in favor of his lawyer, he left for abroad and apparently paid no further attention to his case until he received the decision. There is therefore no fraud, accident, mistake or excusable negligence which will warrant a lifting of the order of default. As a general rule, a client is bound by the mistakes of his counsel; more so by the result of his own negligence. (Velasquez v. CA, G.R. No. 124049, June 30, 1999)

Note: A lawyer should prepare his pleadings with great care and circumspection. He should refrain from using abrasive and offensive language, for it merely weakens rather than strengthens the force of legal reasoning and detracts from its persuasiveness. In preparing a complaint for damages, counsel for plaintiff should allege and state the specific amounts claimed not only in the body of the complaint but also in the prayer, so that the proper docket fees can be assessed and paid. (Fernandez v. Atty. Novero, A.C. No. 5394, Dec. 2, 2002) Note: The counsel must constantly keep in mind that his action or omissions, even malfeasance and nonfeasance would be binding to his client. Verily, a lawyer owes to the client the exercise of utmost prudence and responsibility in representation (Fernandez v. Atty. Novero, A.C. No. 5394, December 2002).

c. Duty to Appraise the Client

Rule 18.03, Canon 18, CPR - A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. (1998, 2002 Bar Questions)

Rule 18.02, Canon 18, CPR - A lawyer shall not handle any legal matter without adequate preparation.

Rule 18.04, Canon 18, CPR - A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client’s request for information.


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A lawyer should notify his client of the adverse decision while within the period to appeal to enable the client to decide whether to seek an appellate review. He should communicate with him concerning the withdrawal of appeal with all its adverse consequences. The client is entitled to the fullest disclosure of the mode or manner by which his interest is defended or why certain steps are taken or omitted.

Q: Spouses Garcia engaged the services of Atty. Rolando Bala to appeal to the CA the adverse Decision of the Department of Agrarian Relations Adjudication Board (DARAB). Instead, he erroneously filed a Notice of Appeal. During one instance when the spouses had called on him to ask for a copy of the supposed appeal, Atty. Bala uttered unsavory words against them. Because of his error, the prescribed period for filing the petition lapsed, to the prejudice of his clients. Did Atty. Bala violate any ethical rules? A: Yes. Rule 18.04 states that a "lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client's request for information." Accordingly, spouses had the right to be updated on the developments and status of the case for which they had engaged the services of Atty. Bala. But he apparently denied them that right.

Having become aware of the wrong remedy he had erroneously taken, he purposely evaded his clients, refused to update them on the appeal, and misled them as to his whereabouts. Moreover, he uttered invectives at them when they visited him for an update on the case. (Spouses Garcia v. Bala, A.C. No. 5039, Nov. 25, 2005)

Note: The lawyer is obliged to respond within a reasonable time to a client's request for information. A client is entitled to the fullest disclosure of the mode or manner by which that client's interest is defended or why certain steps are taken or omitted. A lawyer who repeatedly fails to answer the inquiries or communications of a client violates the rules of professional courtesy and neglects the client's interests. (Villariasa-Reisenbeck v. Abarrientos, A.C. No. 6238, Nov. 4, 2004)

Q: Explain the doctrine of imputed knowledge. A: The knowledge acquired by an attorney during the time that he’s acting within the scope of his authority is imputed to the client. It is based on the assumption that an attorney, who has notice of matter affecting his client, has communicated

the same to his principal in the course of professional dealings. Note: The doctrine applies regardless of whether or not the lawyer actually communicated to the client what he learned in his professional capacity, the attorney and his client being one judicial person.

Q: Are the mistakes or negligence of a lawyer binding upon the client? A:

GR: Client is bound by attorney’s conduct, negligence and mistake in handling a case or in management of litigation and in procedural technique, and he cannot complain that the result might have been different had his lawyer proceeded differently. XPN: LIPIG

1. Lack of acquaintance with technical aspect of procedure;

2. When adherence thereto results in outright deprivation of client’s liberty or property or where Interest of justice so requires;

3. Where error by counsel is Purely technical which does not substantially affect client’s cause;

4. Ignorance, incompetence, or inexperience of lawyer is so great and error so serious that client, who has a good cause, is prejudiced and denied a day in court;

5. Gross negligence of lawyer. (1998, 2000, 2002 Bar Questions)

Note: If by reason of the lawyer’s negligence, actual loss has been caused to his client, the latter has a cause of action against him for damages. However, for the lawyer to be held liable, his failure to exercise reasonable care, skill and diligence must be proximate cause of the loss.

Q: What are the exceptions to the rule that “notice to counsel is notice to client”? A:

1. Strict application might foster dangerous collusion to the detriment of justice;

2. Service of notice upon party instead of upon his attorney is ordered by the court;

3. Notice of pre-trial is required to be served upon parties and their respective lawyers;

4. In appeal from the lower court to the RTC, upon docketing of appeal.

http://www.lawphil.net/judjuris/juri2005/nov2005/ac_5039_2005.html


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Q: What is a plea of guilty? A: It is an admission by the accused of his guilt of a crime as charged in the information and of the truth of the facts alleged, including the qualifying and aggravating circumstances. Q: What is the duty of the defense counsel when his client desires to enter a plea of guilty? A: F-CEPA

1. Fully acquaint himself with the records and surrounding circumstances of the case;

2. Confer with the accused and obtain from him his account of what had happened;

3. Thoroughly Explain to him the import of a guilty plea and the inevitable conviction that will follow;

4. See to it that the prescribed Procedure which experience has shown to be necessary to the administration of justice is strictly followed and disclosed in the court records; and

5. Advise him of his constitutional rights.

Note: A lawyer should endeavor to seek instruction from his client on any substantial matter concerning the litigation, which may require decision on the part of the client, such as whether to compromise the case or to appeal an unfavorable judgment. He should give his client sound advice on any such and similar matters and comply with the client’s lawful instructions relative thereto. He should resist and should never follow any unlawful instruction of his client.

6. REPRESENTATION WITH SEAL WITHIN LEGAL BOUNDS

Q: What does a lawyer represent to a client when he accepts a professional employment of his services? A: When a lawyer accepts a case, whether for a fee or not, his acceptance is an implied representation that he: CASE

1. Will exercise reasonable and ordinary Care and diligence in the pursuit or defense of the case;

2. Will possess the requisite degree of Academic learning, skill and ability in the practice of his profession;

3. Will take steps as will adequately Safeguard his client’s interests; and

4. Will Exert his best judgment in the prosecution or defense of the litigation entrusted to him. (Islas v. Platon, G.R. No. L-23183, Dec. 29, 1924)

Q: Is a lawyer required to show his authority to appear for or represent a client? A: No. An attorney is presumed to be properly authorized to represent any cause in which he appears in all stages of the litigation and no written authority is required to authorize him to appear. A mere denial by a party that he has authorized an attorney to appear for him, in the absence of a compelling reason, is insufficient to overcome the presumption especially when the denial comes after the rendition of an adverse judgment. Q: May a practicing lawyer be required to produce or prove his authority to appear in court? A: Yes. The presiding judge may, on motion of either party and on reasonable grounds therefore being shown, require an attorney who assumes the right to appear in a case to produce or prove the authority under which he appears, and to disclose, whenever pertinent to any issue, the name of the person who employed him, and may thereupon make such order as justice requires. (Sec. 21, Rule 138, RRC) Q: What are the effects of an unauthorized appearance? A:

1. The party represented is not bound by attorney’s appearance in the case neither by the judgment rendered therein;

2. Court does not acquire jurisdiction over the person of the party represented;

3. The adverse party who has been forced to litigate as a defendant by the unauthorized action on the part of the attorney for the plaintiff may, on that ground, move for the dismissal of the complaint; and

4. If unauthorized appearance is willful, attorney may be cited for contempt as an officer of the court who has misbehaved in his official transactions, and he may be disciplined for professional misconduct.

CANON 19, CPR - A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE

LAW. (1994, 1997, 2001, 2003 Bar Questions)


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Q: May an attorney voluntarily appear for a person without being employed? A: No. An attorney may not appear for a person until he is in fact employed by, or retained for such person. An attorney willfully appearing in court for a person without being employed, unless by leave of court, may be punished for contempt as an officer of the court, who has misbehaved in his official transactions. (Sec. 26, Rule 138) Q: How can an unauthorized appearance be ratified? A:

1. Express – Categorized assertion by client that he has authorized a lawyer or that he confirms his authorization to represent him in the case.

2. Implied – Where party with knowledge of fact that a lawyer has been representing him in a case, accepts benefits of representation or fails to promptly repudiate the assumed authority.

Q: What are the requisites of implied ratification by silence? A:

1. The party represented by the attorney is of age or competent or if he suffers from any disability, he has a duly appointed guardian or legal representative;

2. The party or his guardian, as the case may be, is aware of the attorney’s representation; and

3. He fails to promptly repudiate assumed authority.

Q: What is the extent of a lawyer’s authority in the conduct of litigation? A: A lawyer has authority to bind the client in all matters of ordinary judicial procedure. The cause of action, the claim or demand sued upon and the subject matter of the litigation are within the exclusive control of the client. A client may waive, surrender, dismiss, or compromise any of his rights involved in litigation in favor of the other party even without or against the consent of his attorney. Q: Who has control over the proceedings?

A: 1. As to matters of procedure- it is the client

who yields to the lawyer and not the lawyer yielding to the client. (Lapena, 2009)

Rationale: The basis of this rule is that the lawyer is better trained and skilled in law.

Note: Cause of action, claim or demand, and subject of litigation are within client’s control. Proceedings to enforce the remedy are within the exclusive control of the attorney.

2. As to subject matter- the client is in control.

Q: What is a compromise? A: It is a contract whereby the parties, by making reciprocal concessions, avoid litigation or put an end to one already commenced. (Art. 2028, NCC) Q: State the rule with respect to the authority of an attorney to compromise his client’s case. A:

GR: The attorney has no authority to compromise his client’s case. This is so because the client, even if represented by counsel, retains exclusive control over the subject matter of the litigation. The client can, of course, authorize his lawyer to compromise his case, and the settlement made by the lawyer will bind his client. XPN: When the lawyer is confronted with an emergency where prompt and urgent action is necessary to protect the interest of his client and there is no opportunity for consultation with the latter.

a. Duty to Restrain Client from Impropriety

Note: Under this rule, a lawyer should not file or threaten to file any unfounded or baseless criminal case or cases against the adversaries of his client

Rule 19.01, Canon 9, CPR – A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding. (1997 Bar Question)


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designed to secure a leverage to compel the adversaries to yield or withdraw their own cases against the lawyer’s client. (Pena v. Atty. Aparicio, A.C. No. 7298, June 25, 2007) Note: Rule 19.01 of the CPR obligates a lawyer, in defending his client, to employ only such means as are consistent with truth and honor. He should not prosecute patently frivolous and meritless appeals or institute clearly groundless actions. The act of a lawyer in preventing the execution of the judgment against his clients shows that he actually committed what the above rule expressly prohibits. (Que v. Revilla, A.C. No. 7054, Dec. 4, 2009)

Q: Alex Ong received a demand-letter from Atty. Elpidio Unto, in the latter's capacity as legal counsel of one Nemesia Gargania. The letter is in connection with the claim of support of Nemesia Garganian against him for her son. It was further stated therein that failure to comply with the demand will result to the filing of proper action in court.

The real father of Ms. Garganian's son was Alex' brother and he merely assumed his brother's obligation to appease Ms. Garganian who was threatening to sue them. Alex then did not comply with the demands against him. Consequently, Atty. Unto filed a complaint for alleged violation of the Retail Trade Nationalization Law and the Anti-Dummy Law.

In addition, he commenced administrative cases against Alex before the Bureau of Domestic Trade, the Commission on Immigration and Deportation, and the Office of the Solicitor General. These cases were subsequently denied due course and dismissed. This prompted Alex to file a case for disbarment. Did Atty. Unto fall short of professional standards?

A: Yes. He tried to coerce his client to comply with his letter-demand by threatening to file various charges against the latter. When Alex did not heed Atty. Unto’s warning, he made good his threat and filed a string of criminal and administrative cases against him. His action is malicious as the cases he instituted against the complainant did not have any bearing or connection to the cause of his client, Ms. Garganian. Clearly, Atty. Unto violated the proscription in Rule 19.01. His behavior is inexcusable. (Ong v. Unto, A.C. No. 2417, Feb. 6, 2002)

b. Duty of Lawyer in Case of Knowledge of

Client’s Fraud

The lawyer’s duty to his client does not mean freedom to set up false or fraudulent claims especially with respect to provisions of law or administrative rules and that while lawyers are bound to exert utmost legal skill in prosecuting their client’s cause or defending it, their duty, first and foremost, is to the administration of justice. (CPR Annotated, PhilJA) Note: It is an unethical tactic for a lawyer to offer monetary rewards to anyone who could give him information against a party so that he could have leverage against all actions involving such party. (CPR Annotated, PhilJA) Note: A lawyer should use his best efforts to restrain and to prevent his client from doing those things which he himself ought not to do, particularly with reference to the conduct toward the court, judicial officer, witness and suitor and if the client persists in such wrong doing, the lawyer should terminate their relation. (Surigao Mineral Reservation Board v. Cloribel, G.R. No. L-27072, Jan. 9, 1970)

c. Authority of a Lawyer The Code enjoins a lawyer to employ only fair and honest means to attain the lawful objectives of his client and warns him not to allow his client to dictate the procedure in handling the case. In short, a lawyer is not a gun for hire. (Millare v. Atty. Montero, A.C. No. 3283, July 13, 1995)

Note: The lawyer, and not the client, is assumed to have knowledge of laws and rules of procedure. The procedure in handling a case should therefore fall within the lawyer’s control and supervision.

Q: Is the lawyer confined entirely on the information his client gave? A: No. The lawyer cannot entirely depend on the information his client gave or the time his client

Rule 19.02, Canon 19, CPR – A lawyer who has received information that his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court. (2001 Bar Question)

Rule 19.03, Canon 19, CPR – A lawyer shall not allow his client to dictate the procedure in handling the case.


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wished to give. The lawyer should take more control over handling the case. Where the client is based overseas, the lawyer should with more reason, have moved to secure all the legal means available to him either to continue representing his client effectively or to make the necessary manifestation in court, with the client’s conformity, that he was withdrawing as counsel of record. (CPR Annotated, PhilJA) Note: Counsel's failure to file formal offer of exhibits constitutes inexcusable negligence as it led to the dismissal of the case. To compound his inefficiency, counsel filed a motion for reconsideration outside the reglementary period. His attempts to evade responsibility by shifting the blame on his client are apparent. He refers to the alleged obnoxious attitude of his client in trying to manipulate the manner in which he was handling the case as the main reason for his failure to formally offer his exhibits. But he should bear in mind that while a lawyer owes utmost zeal and devotion to the interest of his client, he also has the responsibility of employing only fair and honest means to attain the lawful objectives of his client and he should not allow the latter to dictate the procedure in handling the case. (Fernandez v. Novero, A.C. No. 5394, Dec.2, 2002)

Q: What is appearance? A: It is the coming into court as a party either as a plaintiff or as a defendant and asking relief therefrom. Q: What are the kinds of appearance? A:

1. General appearance – When a party comes to court either as plaintiff or defendant and seeks general reliefs from the court for satisfaction of his claims or counterclaims respectively.

2. Special appearance – When a defendant appears in court solely for the purpose of objecting to the jurisdiction of the court over his person.

Note: By virtue of Sec. 20, Rule 14 of the 1997 Rules of Civil Procedure, there is no more distinction between general appearance and special appearance, in the sense that a defendant may file a motion to dismiss not only on the ground of lack of jurisdiction over his person but also on some other grounds without waiving the jurisdiction of the court over his person.

Note: If the defendant seeks other reliefs, the appearance, even if qualified by the word special, is equivalent to a general appearance. Generally, appointment of counsel confers a general authority. Thus, acts which are necessary or incidental to the management of the suit or for the accomplishment of a specific purpose are entrusted to him. And the client has a right to expect that his/her counsel will protect his/her interest.

7. ATTORNEY’S FEES

(1990, 1991, 1992, 1994, 1995, 1997, 1998, 2005, 2006, 2007 Bar Question)

Q: Who are entitled to attorney’s fees? A:

GR: Only lawyers are entitled to attorney’s fees. The same cannot be shared with a non-lawyer. It is unethical. XPN: A lawyer may divide a fee for legal services with persons not licensed to practice law: CPR

1. A lawyer undertakes to Complete the unfinished legal business of a deceased lawyer;

2. There is a Pre-existing agreement with a partner or associate that, upon the latter’s death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement;

3. A lawyer or law firm includes non-lawyer employees in Retirement plan, even if the plan is based, in whole or in part, on a profit-sharing agreement. (Rule 9.02, CPR)

Note: Entitlement to lawyer’s fees is presumed. (Funa, 2009) Unless otherwise expressly stipulated, rendition of professional services by a lawyer is for a fee or compensation and is not gratuitous. (Research and Services Realty, Inc. v. CA, G.R. No. 124074, January 27,1997)

CANON 20,CPR - A LAWYER SHALL CHARGE ONLY FAIR AND

REASONABLE FEES (1997,1998,2003 Bar Question).


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Note: Generally, the amount of attorney’s fees due is that stipulated in the retainer agreement which is conclusive as to the amount of lawyer’s compensation (Funa, 2009) unless the stipulated amount in the written contract is found by the court to be unconscionable or unreasonable (Sec. 24, Rule 138, RRC). In the absence thereof, the amount of attorney’s fees is fixed on the basis of quantum meruit. (Sesbreno v. Court of Appeals, G.R. No. 117438, June 8,1995; Funa, 2009)

Q: What are the kinds of payment which may be stipulated upon? A:

1. Fixed or absolute fee that which is payable regardless of the result of the case. a. A fixed fee payable per appearance b. A fixed fee computed upon the

number of hours spent c. A fixed fee based on piece work d. Combination of any of the above

2. Contingent fee – a fee that is conditioned on the securing of a favorable judgment and recovery of money or property and the amount of which may be on a percentage basis. (1990, 2000, 2001, 2002, 2006, 2008 Bar Questions)

Q: What are the requisites for the right to attorney’s fees to accrue? A:

1. Existence of attorney-client relationship; and

2. Rendition by the lawyer of services to the client.

Note: A pauper, while exempted from payment of legal fees is not exempted from payment of attorney’s fees.(Cristobal v. Employees Compensation Commission, G.R. No. L-49280, February26, 1981)

Q: What are the factors in determining the attorney’s fees? A: In determining what is fair and reasonable, a lawyer shall be guided by the following factors: STIP-SNACCC

1. Skill demanded; 2. Time spent and the extent of the services

rendered or required; 3. Importance of the subject matter; 4. Probability of losing other employment as

a result of acceptance of the proffered case;

5. Professional Standing of the lawyer; 6. Novelty and difficulty of the questions

involved; 7. Amount involved in the controversy and

the benefits resulting to the client from the services;

8. Customary Charges for similar services and the schedule of fees of the IBP chapter to which he belongs;

9. Contingency or certainty of compensation; and

10. Character of the employment, whether occasional or established. (Rule 20.01) (1994 Bar Question)

Note: Imposition of interest in the payment of attorney’s fees is not justified.(Funa, 2009) Contracts for attorney’s services in this jurisdiction stands upon an entirely different footing from other contract for the payment of compensation for any other services. (Mambulao Lumber Co. v. Philippine National Bank, 130 Phil. 366)

Note: A lawyer is entitled to recover litigation expenses incurred in collecting attorney’s fees.(Funa, 2009)

Q: Are the courts bound by the opinions of attorneys as expert witnesses as to the proper compensation of the lawyer?

Rule 20.01, Canon 20, CPR - A lawyer shall be guided by the following factors in determining his fees:

a. The time spent and the extent of the service rendered or required;

b. the novelty and difficulty of the questions involved;

c. The importance of the subject matter;

d. The skill demanded; e. The probability of losing other

employment as a result of acceptance of the proffered case;

f. The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs;

g. The amount involved in the controversy and the benefits resulting to the client from the service;

h. The contingency or certainty of compensation;

i. The character of the employment, whether occasional or established; and

j. The professional standing of the lawyer.


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A: No. “No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, and may disregard such testimony and base its conclusion on its professional knowledge. A written contract for services shall control the amount to be paid therefor, unless found by the court to be unconscionable or unreasonable. (Sec. 24, Rule 138, RRC) Q: In the absence of a fee arrangement, how would the services of an attorney be compensated? A: In the absence of a fee arrangement, the lawyer is paid on a quantum meruit basis. The factors to be taken into consideration in determining the amount are: TINS

1. Time spent and the services rendered or required – A lawyer is justified in fixing higher fees when the case is so complicated and requires more time and effort in fixing it.

2. Importance of subject matter – The more important the subject matter or the bigger the value of the interest of the property in litigation, the higher is the attorney’s fees.

3. Novelty and difficulty of questions involved – When the questions in a case are novel and difficult, greater effort, deeper study and research are bound to burn the lawyer’s time and stamina considering that there are no local precedents to rely upon.

4. Skill demanded of a lawyer – The totality of the lawyer’s experience provides him skill and competence admired in lawyers.

Q: What does quantum meruit mean? A: Quantum meruit means "as much as he deserves", and is used as the basis for determining the lawyer's professional fees in the absence of a contract, but recoverable by him from his client. Q: When is the measure of quantum meruit resorted to? (2007 Bar Question) A: Quantum meruit is resorted to when:

1. There is no express contract for payment of attorney’s fees agreed upon between the lawyer and the client;

2. Although there is a formal contract for attorney’s fees, the stipulated fees are found unconscionable or unreasonable by the court;

3. The contract for attorney’s fees is void due to purely formal matters or defects of execution;

4. The counsel, for justifiable cause, was not able to finish the case to its conclusion;

5. Lawyer and client disregard the contract for attorney’s fees; and

6. The client dismissed his counsel before the termination of the case.

Note: Length of practice is not a safe criterion of professional ability.

Q: A client refuses to pay Atty. A his contracted attorney's fees on the ground that counsel did not wish to intervene in the process of effecting a fair settlement of the case. Decide.

A: Rule 1.04 of the Code of Professional Responsibility provides that "a lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement". If a lawyer should refuse to intervene in a settlement proceeding, his entitlement to his attorney's fees may be affected. However, if he has already rendered some valuable services to the client, he must be paid his attorney's fees on the basis of quantum meruit, even if it is assumed that he is dismissed. (2001 Bar Question) Q: What are the instances when counsel cannot recover full amount despite written contract for attorneys’ fees? A:

1. When the services called for were not performed as when the lawyer withdrew before the case was finished, he will be allowed only reasonable fees;

2. When there is a justified dismissal of the attorney, the contract will be nullified and payment will be on the basis of quantum meruit only. A contrary stipulation will be invalid;

3. When the stipulated attorney’s fees are unconscionable, when it is disproportionate as compared to the value of services rendered and is revolting to human conscience;

4. When the stipulated attorney’s fees are in excess of what is expressly provided by law;

5. When the lawyer is guilty of fraud or bad faith toward his client in the matter of his employment;

6. When the counsel’s services are worthless because of his negligence;


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7. When contract is contrary to law, morals or public policy; and

8. Serving adverse interest unless the lawyer proves that it was with the consent of both parties. (2006 Bar Question)

Q: Courts may interfere and reduce contractually agreed upon attorney’s fees when the same is unconscionable or excessive. What is the rationale behind this authority?

A:

1. Indubitably intertwined with the lawyer’s duty to charge only reasonable fees is the power of the court to reduce the amount of attorney’s fees if the same is excessive and unconscionable. (Roxas v. De Zuzuarregui, Jr., G. R. No. 152072, Jan. 31, 2006);

2. A lawyer is primarily an officer of the court hence fees should be subject to judicial control;

3. Sound public policy demands that courts disregard stipulations for attorney’s fees when they appear to be a source of speculative profit at the expense of the debtor or mortgagor. (Borcena v. IAC, et. al., G.R. No. 70099, Jan. 7, 1987)

Note: A trial judge may not order the reduction of the attorney’s fees on the ground that the attorney is “below average standard of a lawyer.” The opinion of the judge as to the capacity of a lawyer is not a basis of the right to a lawyer’s fees. (Fernandez v. Hon. Bello, No. L-14277, April 30, 1960)

Q: When are attorney’s fees considered as unconscionable?

A:

1. An amount compared to the value of the services is so disproportionate as to shock human conscience.

2. One in which no man in his right senses, not under delusion, would make on one hand, and which no fair and honest man would accept on the other.

a. Concepts of Attorney’s Fees

Q: What are the two concepts of attorney’s fees? A:

1. Ordinary attorney's fee – The reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the latter.(Pineda, 2009)

Note: The basis for this compensation is the fact of his employment by and his agreement with the client.(Ibid.)

2. Extraordinary attorney's fee – An

indemnity for damages ordered by the court to be paid by the losing party in litigation. Such award belongs to the client but parties may stipulate that whatever may be awarded by the court as attorney’s fees will go directly to the lawyer.

Note: The basis for this is any of the cases provided for by law where such award can be made, such as those authorized in Article 2208 of the Civil Code, and is payable not to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof.

Ordinary Concept of Attorney’s Fees

Q: Aurora Pineda filed an action for declaration of nullity of marriage against Vinson Pineda, who was represented by Attys. Clodualdo de Jesus, Carlos Ambrosio and Emmanuel Mariano. The parties' proposal for settlement regarding Vinson's visitation rights over their minor child and the separation of their properties was approved by the court. The marriage was subsequently declared null and void. Throughout the proceedings counsels and their relatives and friends, availed of free products and treatments from Vinson’s dermatology clinic. This notwithstanding, they billed him additional legal fees amounting to P16.5 million which he, however, refused to pay. Instead, he issued them several checks totaling P1.12 million as full payment for settlement. Still not satisfied, the three lawyers filed in the same court a motion for payment of lawyers' fees for P50 million, which is equivalent to 10% of the value of the properties awarded to Pineda in the case. Are their claim justified?

A: No. Clearly, what they were demanding was additional payment for legal services rendered in the same case. Demanding P50 million on top of the generous sums and perks already given to them was an act of unconscionable greed. They could not charge Pineda a fee based on percentage, absent an express agreement to that effect. The payments to them in cash, checks, free products and services from Pineda’s business more than sufficed for the work they did. The full


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payment for settlement should have discharged Vinson's obligation to them.

As lawyers, they should be reminded that they are members of an honorable profession, the primary vision of which is justice. It is the lawyer’s despicable behavior in the case at bar which gives lawyering a bad name in the minds of some people. The vernacular has a word for it: nagsasamantala. The practice of law is a decent profession and not a money-making trade. Compensation should be but a mere incident. (Pineda v. de Jesus, G.R. No. 155224, Aug. 23, 2006) Q: DOY Mercantile Inc. refused to satisfy Atty. Gabriel, Jr.’s attorney’s fees, prompting the latter to file with the RTC a Motion to Allow Commensurate Fees and to Annotate Attorney’s Lien on certain TCTs. The RTC fixed Atty. Gabriel, Jr.’s fees and ordered that a lien be annotated on the TCTs. A Writ of Execution was later issued by the trial court in Atty. Gabriel, Jr.’s favor. Upon Atty. Gabriel Jr.’s motion for reconsideration, the RTC increased his fees. It then issued another Writ of Execution to enforce the new award but denied the Motion to Annotate the Award at the back of the TCTs. DOY, for its part, filed several petitions to set aside the RTC Orders involving the award of attorney’s fees. Eventually, CA rendered a decision, fixing Atty. Gabriel, Jr.’s fees at P200,000.00 and affirming the subsequent order of the RTC not to annotate such award on the TCTs. Should the court rely on the importance of the subject matter in controversy and the professional standing of counsel in awarding attorney’s fee?

A: No. DOY’s contention that the appellate court should also have taken into account the importance of the subject matter in controversy and the professional standing of counsel in determining the latter’s fees is untenable. Although Rule 138 of the Rules of Court and Rule 20.01, Canon 20 of the Code of Professional Responsibility list several other factors in setting such fees, these are mere guides in ascertaining the real value of the lawyer’s service. Courts are not bound to consider all these factors in fixing attorney’s fees. While a lawyer should charge only fair and reasonable fees, no hard and fast rule maybe set in the determination of what a reasonable fee is, or what is not. That must be established from the facts in each case. (DOY Mercantile, Inc. v. AMA Computer College, G.R. No. 155311, Mar. 31, 2004)

Extraordinary Concept of Attorney’s Fees

Q: State the rule on attorney’s fees being awarded as damages and its exceptions. A:

GR: Attorney’s fees as damages are not recoverable. An adverse decision does not ipso facto justify their award in favor of the winning party. XPN: Attorney’s fees in the concept of damages may be awarded in any of the following circumstances:

1. When there is an agreement; 2. When exemplary damages are

awarded; 3. When defendant’s action or omission

compelled plaintiff to litigate; 4. In criminal cases of malicious

prosecution a. Plaintiff was acquitted; and b. The person who charged him

knowingly made the false statement of facts or that the filing was prompted by sinister design to vex him;

5. When the action is clearly unfounded; 6. When defendant acted in gross and

evident bad faith; 7. In actions for support; 8. In cases of recovery of wages; 9. In actions for indemnity under

workmen’s compensation and employee’s liability laws;

10. In a separate civil action arising from a crime;

11. When at least double costs are awarded (costs of suit does not include attorney’s fees);

12. When the court deems it just and equitable; and

13. When a special law so authorizes. (Art. 2208, NCC)

b. Acceptance Fees

Q: What is an acceptance fee? A: It is an absolute fee arrangement which entitles a lawyer to get paid for his efforts regardless of the outcome of the litigation (Funa, 2009).


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Q: Rose engaged the services of Atty. Jack as counsel for five cases. In the Retainer Agreement, Rose agreed to pay Atty. Jack the amount of 200,000 as Acceptance Fee for the five cases plus an additional 1,500 Appearance Fee per hearing and in the event that damages are recovered, she would pay Atty. Jack 10% as success fee. Rose issued two checks amounting to 51,716.54 in favour of Atty. Jack however despite receipt of said amounts he failed to file a case in one of the five cases referred to him; one case was dismissed due to untimely appeal; and another case was dismissed but he failed to inform Rose about it before she left for abroad. Dissatisfied with the outcome of her cases she demanded from Atty. Jack the return of all the records she had entrusted to him however he returned only two of the five cases. She filed a complaint charging him with violation of Canon 16 and 16.03 of the Code of Professional Responsibility. Was there a violation of the said Canon by the respondent? A: None. From the records of the case, it was found that four of the cases referred by Rose were filed but were dismissed or terminated for causes not attributable to Atty. Jack; and that there was no probable cause to maintain the suit. No fault or negligence can be attributed to the Atty. Jack. Rose still owes payment of acceptance fee because she only paid 51, 716.54 An acceptance fee is not a contingent fee, but is an absolute fee arrangement which entitles a lawyer to get paid for his efforts regardless of the outcome of the litigation. Dissatisfaction from the outcome of the cases would not render void the retainer agreement for Atty. Jack appears to have represented the interest of Rose. (Yu v Bondal, A.C. No. 5534, January 17, 2005) Note: The expiration of the retainer contract between the parties during the pendency of the labor case does not extinguish the respondent’s right to attorney’s fees. (Uy v. Gonzales, A.C. No. 5280, Mar. 30, 2004)

Q: What are the different types of fee arrangements an attorney may enter into with his client? A:

1. Retainer’s fee where the lawyer is paid for services for an agreed amount for the case.

2. The lawyer agrees to be paid per court appearance.

3. Contingent fee where the lawyer is paid for his services depending on the success of the case. This applies usually in civil suits for money or property where the lawyer’s fee is taken from the award granted by the court.

4. Attorney de oficio. The attorney is appointed by the court to defend the indigent litigant in a criminal case. The client is not bound to pay the attorney for his services although he may be paid a nominal fee taken from a public fund appropriated for the purpose.

5. Legal aid. The attorney renders legal services for those who could not afford to engage the services of paid counsel.

6. Quantum meruit basis. If there is no specific contract between the lawyer and the client, the lawyer is paid on quantum meruit basis, that is, what the lawyer deserves for his services.

Q: What is a retainer? A: It may refer to two concepts:

1. Act of a client by which he engages the services of an attorney to render legal advice or to defend or prosecute his cause in court; or

2. Fee which a client pays to the attorney. Q: Concept Placement retained the services of Atty. Funk. Under their retainer contract, Atty. Funk is to render various legal services except litigation, quasi-judicial and administrative proceedings and similar actions for which there will be separate billings. Thereafter, Atty. Funk represented Concept Placement in the case filed against it for illegal dismissal. While the labor case was still pending, Concept Placement terminated the services of Atty. Funk. Nevertheless, Atty. Funk continued handling the case. Atty. Funk then advised Concept Placement of the POEA’s favorable decision and requested the payment of his attorney’s fees. Concept Placement refused. Is Atty. Funk entitled to attorney’s fees for assisting Concept Placement as counsel in the labor case even if the services of Atty. Funk were already terminated?

A: Yes. The expiration of the retainer contract between the parties during the pendency of the


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Q: What are the exceptions to Rule 9.02? A:

1. Where there is a pre-existing agreement with a partner or associate that, upon the latter’s death, money shall be paid over a reasonable period of time to his estate to persons specified in the agreement;(Rule 9.02,second par., Canon 9,CPR) or

Note: This exception is in the nature of a bequest. It is still in substance, payment to the deceased lawyer. His estate and/or assignee could not claim entitlement to the money in their own right but only by representation. (CPR Annotated, PhilJA)

2. Where a lawyer undertakes to complete

unfinished legal business of a deceased lawyer; (Rule 9.02 ,third par., Canon 9,CPR) or Note: The first and second exceptions represent compensation for legal services of the deceased lawyers. The estate or the heir cannot be made a member of the partnership with the surviving partners. The legal fees in this case, no longer represent compensation for past services.

3. Where a lawyer or law firm includes a

non-lawyer employees in a retirement plan, even if the plan is based in whole or in part, on a profit sharing agreement.(Rule 9.02, fourth par., Canon 9,CPR) Note: This is not a division of legal fees but a pension representing deferred wages for the employees’ past services. This exception is an implicit recognition of the incontestable fact that lawyers need to, and in fact, depend on non-lawyers for the administrative support functions necessary to allow lawyers to discharge their legal functions more efficiently. (CPR Annotated, PhilJA)

Rationale: If attorney’s fees were allowed to non-lawyers, it would leave the public in hopeless confusion as to whom to consult in case of necessity and also to leave the bar in a chaotic condition, aside from the fact that non-lawyers are not amenable to disciplinary measures.

Q: You had just taken your oath as lawyer. The secretary to the president of a big university offered to get you as the official notary public of

the school. She explained that a lot of students lose their identification cards and are required to secure an affidavit of loss before they can be issued a new one. She claimed that this would be very lucrative for you, as more than 30 students lose their identification cards every month. However, the secretary wants you to give her one-half of your earning there from. Will you agree to the arrangement? Explain.

A: No, I will not agree. Rule 9.02 of the Code of Professional Responsibility provides that “a lawyer shall not divide or stipulate to divide a fee for legal service with persons not licensed to practice law”. The secretary is not licensed to practice law and is not entitled to a share of the fees for notarizing affidavits, which is a legal service. (2005 Bar Question)

C. THE LAWYER AND THE COURTS.

1. CANDOR, FAIRNESS AND GOOD FAITH

TOWARDS THE COURT

Rationale: The burden cast on the judiciary would be intolerable if it could not take at face value what is asserted by counsel.

Q: Atty. Florido demanded that the custody of their children be surrendered to him by showing his spouse Hueysuwan-Florido a photocopy of an alleged Resolution issued by the CA which supposedly granted his motion for temporary child custody. His spouse refused to surrender the custody. Hence, Atty. Florido filed a verified petition for the issuance of a writ of habeas corpus asserting his right to custody of the children on the basis of the alleged CA’s resolution. Hueysuwan obtained a certification from the CA stating that no such resolution had been issued. Hence, complainant filed the instant complaint. May Atty. Florido be held administratively liable for his reliance on and attempt to enforce a spurious Resolution of the CA?

A: Yes. Atty. Florido’s actions erode the public perception of the legal profession. Candor and fairness are demanded of every lawyer. The burden cast on the judiciary would be intolerable if it could not take at face value what is asserted by counsel. The time that will have to be devoted

CANON 10, CPR

- A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT.

(1994 Bar Question)


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just to the task of verification of allegations submitted could easily be imagined. (Hueysuwan-Florido v. Atty. Florido, A.C. No. 5624, Jan. 20, 2004)

Note: A lawyer must be a discipline of truth. He should bear in mind that as an officer of the court his high vocation is to correctly inform the court upon the law and the facts of the case and to aid it in doing justice and arriving at correct conclusion. The courts on the other hand are entitled to expect only complete honesty from lawyers appearing and pleading before them. While a lawyer has the solemn duty to defend his client’s cause, his conduct must never be at the expense of truth. (Young v. Batuegas, A.C. No. 5379, May 9, 2003) Note: A lawyer owes fidelity to the cause of his client but not at the expense of truth and the administration of justice. (Garcia v. Francisco, Adm. Case no. 3923, March 30,1993)

Q: Dr. Maligaya, a doctor and retired colonel of the Air Force filed an action for damages against several military officers for whom Atty. Doronilla stood as a counsel. During the hearing of the case, Atty. Doronilla says that he and Dr. Maligaya had an agreement that if the opposing party withdraws the case against him, Dr. Maligaya will also withdraw all the cases. However, Dr. Maligaya swore that he never entered into any agreement to withdraw his lawsuits. Atty. Doronillo admitted that there was, in fact, no such agreement. He pointed out that his main concern was to settle the case amicably. Dr. Maligaya filed a case against Atty. Doronilla charging him of unethical conduct for having uttered falsehood in court. Is Atty. Doronilla guilty as charged?

A: Yes. Atty. Doronilla violated Canon 10 and Rule 10.01 of the CPR. Not only that, he also violated the lawyer’s oath to “do no falsehood, nor consent to the doing of any in court”, of which Canon 10 and Rule 10.01 are but restatements. His act infringed on every lawyer’s duty to “never seek to mislead the judge or any officer by an artifice or false statement of fact or law”. (Maligaya v. Doronilla, A.C. No. 6198, Sept. 15, 2006)

Q: Is the lawyer’s act in presenting false evidence in order that his client would win the case justifiable? A: No, because it is a clear violation of Canon 10 and Rule 10.01 of the CPR. Note: Aside from violations of the CPR, the lawyer is also guilty of a crime under Art. 184, Revised Penal Code, which states,” Any person who shall knowingly offer in evidence a false witness or testimony in any judicial or official proceeding, shall be punished as guilty of false testimony and shall suffer the respective penalties provided in this section.”

Q: What are the requirements of candor? A:

1. A lawyer shall not suppress material and vital facts which bear on the merit or lack of merit of complaint or petition.

2. A lawyer shall volunteer to the court any development of the case which has rendered the issue raised moot and academic.

3. Disclosure to the court of any decision adverse to his position of which opposing counsel is apparently ignorant and which court should consider in deciding a case.

4. He shall not represent himself as a lawyer for a client, appear in court and present pleadings in the latter’s behalf only to claim later that he was not authorized to do so.

Q: What are the some cases of Falsehoods which merited discipline? A:

1. Lawyers falsely stating in a deed of sale that property is free from all liens and encumbrances when it is not so. (Sevilla v. Zoleta, A.C. No. 31, March 28, 1955)

2. Lawyers making it appear that a person, long dead, executed a deed of sale, in his favor. (Monterey v. Arayata, Per. Rec. Nos 3527, 3408, August 23, 1935)

3. Lawyer, encashing a check payable to a deceased cousin by signing the latte’s name on the check. (In re: Samaniego, A.C. No. 74, November 20, 1959)

4. Lawyer falsifying a power of attorney and used it in collecting the money due to the principal and appropriating the money for his own benefit. (In re: Rusina, A.C. No. 270, May 29, 1959)

5. Lawyer alleging in one pleading that his clients were merely lessees of the property involved, and alleged in a later pleading that the same clients were the

Rule 10.01, Canon 10, CPR – A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead, or allow the court to be misled by any artifice.


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owners of the same property where there are false allegations in the pleadings. (Chavez v. Viola, GR No. 2152, 19 April 1991)

6. Lawyer uttering falsehood in a Motion to Dismiss. (Martin v. Moreno, A.C. No. 1432, May 21, 1984)

7. Lawyer denying having received the notice to file brief which is belied by the return card. (Ragasajo v. IAC, G.R. No. L-69129, August 31, 1987)

8. Lawyer presenting falsified documents in court wich he knows to be false. (Berenguer v. Carranza, A.C. No. 716, January 30, 1969)

9. Lawyer filing false charges or groundless suits. (Retuya v. Gorduiz, A.C. No. 1388, March 28, 1980)

Q. What is the rationale behind the rule? A: If not faithfully and exactly quoted, the decisions and rulings of the court may lose their proper and correct meaning, to the detriment of other courts, lawyers and the public who may thereby be misled. Note: A mere TYPOGRAPHICAL ERROR in the citation of an authority is not contemptuous. Note: Labor Arbiter Almirante and Atty. Durano deliberately made the quote from the SCRA syllabus appear as the words of the Supreme Court. We admonish them for what is at least patent carelessness, if not an outright attempt to mislead the parties and the courts taking cognizance to insubordination. (Allied Banking Corporation v. CA, GR No. 144412, November 2003). Note: A lawyer must quote word for word, punctuation mark for punctuation mark.

Q: A lawyer filed a pleading in court citing a law which was already repealed, since the new law is not favorable to his client’s cause. Is he guilty of any unethical act? A: Yes, because he knowingly used the old law to mislead the court, such act is unethical based on Rule 10.02 of the CPR.

Note: The rules of procedure are intended to facilitate the delivery of justice to those to whom it is due without it is due without unnecessary expense and waste of time for truly justice delayed is justice denied. Note: Filing multiple actions constitutes an abuse of the Court’s processes. Those who filed multiple or repetitive actions subject themselves to disciplinary action for incompetence or willful violation of their duties as attorneys to act with all good fidelity to the courts, and to maintain only such actions that appear to be just and consistent with truth and honor. (Pablo R. Olivares etc. v. Atty. Arsenio Villalon Jr., A.C. No. 6323, April 13, 2007)

Q: A lawyer habitually asks for the re-setting of the case of his client for no apparent reason, in order for the complainant to get frustrated and become uninterested in the prosecution of the case. Is that act considered unethical? A: Yes, under Rule 10.03 of the CPR.

Note: A lawyer should not abuse his right of recourse to the courts for the purpose of arguing a cause that had been repeatedly rebuffed. Neither should he use his knowledge of law as an instrument to harass a party nor to misuse judicial processes, as the same constitutes serious transgression of the Code of Professional Responsibility. For while he owes fidelity to the cause of his client, it should not be at the expense of truth and the administration of justice. (Garcia v. Francisco, A.C. No. 3923, Mar. 30, 1993)

Note: This is a new provision. The purpose of this rule is to avoid surprise and delays in cases.

Rule 10.02, Canon 10, CPR – A lawyer shall not knowingly misquote or misrepresent the contents of the paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.

Rule 10.03, Canon 10, CPR - A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.

Rule 10.04, Canon 10, CPR - A lawyer shall, when filing a pleading, furnish the opposing party with a copy thereof, together with all the documents annexed thereto. Unless a motion is ex parte, he should set it for hearing, with sufficient notice to the other party.


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2. RESPECT FOR COURTS AND JUDICIAL OFFICERS

Rationale: Disrespect toward the court would necessarily undermine the confidence of the people in the honesty and integrity of the members of the court, and consequently to lower or degrade the administration of justice by the court. All lawyers are expected to recognize the authority of the Supreme Court and obey its lawful processes and orders. Despite errors which one may impute on the orders of the Court, these must be respected, especially by the bar or the lawyers who are themselves officers of the courts. (Yap-paras v. Atty. Paras, A.C. No. 4947, June 7, 2007) Liberally imputing sinister and devious motives and questioning the impartiality, integrity and authority of the members of the Court result in the obstruction and perversion of the dispensation of justice. (Estrada v. Sandiganbayan, GR No. 159486-88, November 2000) Note: Being an officer of the court, a lawyer occupies a quasi-judicial office and has responsibilities to the courts, to the public and to his clients. The greater burden imposed on the lawyer is his superior duty to the courts. Where duties to the courts conflict with his duties to his clients, his duties to court must yield to the former. (CPR Annotated, PhilJA)

Q: Attorney Paguia, asserts that the inhibition of the members of the Supreme Court from hearing the petition is called for under the Code of Judicial Conduct prohibiting justices or judges from participating in any partisan political activity. According to him, the justices have violated the said rule by attending the 'EDSA 2 Rally' and by authorizing the assumption of Vice-President Macapagal Arroyo to the Presidency. The subsequent decision of the Court in Estrada v. Arroyo (G.R. Nos. 146710-15, Mar. 2, 2001 and G.R. Nos. 146710-15, April 3, 2001) is a patent mockery of justice and due process. He went on to state that — the act of the public officer, if lawful, is the act of the public office. But the act of the public officer, if unlawful, is not the act of the public office. Consequently, the act of the justices, if lawful, is the act of the Supreme Court. But the act of the justices, if unlawful, is not the act of the Supreme Court. It is submitted

that the decision in Estrada v. Arroyo being patently unlawful in view of the Code of Judicial Conduct, is not the act of the Supreme Court but is merely the wrong of those individual Justices who falsely spoke and acted in the name of the Supreme Court (Urbano v. Chavez, G.R. No. 87977, March 19, 1990). Are Atty. Paguia’s comments within the bounds of “fair and well-founded criticisms” regarding decisions of the SC? A: No. Criticism or comment made in good faith on the correctness or wrongness, soundness or unsoundness, of a decision of the Court would be welcome for, if well-founded, and such reaction can enlighten the court and contribute to the correction of an error if committed. (In Re Sotto, 82 Phil. 595.) The ruling in Estrada v. Arroyo, being a final judgment, has long put to end any question pertaining to the legality of the ascension of Arroyo into the presidency. By reviving the issue on the validity of the assumption of Gloria Macapagal-Arroyo to the presidency, Attorney Paguia is vainly seeking to breathe life into the carcass of a long dead issue. Attorney Paguia has not limited his discussions to the merits of his client's case within the judicial forum; indeed, he has repeated his assault on the Court in both broadcast and print media.

The Supreme Court does not claim infallibility; it will not denounce criticism made by anyone against the Court for, if well-founded, can truly have constructive effects in the task of the Court, but it will not countenance any wrongdoing nor allow the erosion of our people’s faith in the judicial system, let alone, by those who have been privileged by it to practice law in the Philippines. Canon 11 of the Code of Professional Responsibility mandates that the lawyer should observe and maintain the respect due to the courts and judicial officers and, indeed, should insist on similar conduct by others. In liberally imputing sinister and devious motives and questioning the impartiality, integrity, and authority of the members of the Court, Atty. Paguia has only succeeded in seeking to impede, obstruct and pervert the dispensation of justice. (Estrada v. Sandiganbayan, G.R. Nos. 159486-88, Nov. 25, 2003) Q: The Court En Banc issued a Resolution directing respondent Atty. De Vera to explain why he should not be cited for indirect contempt of court for uttering some allegedly contemptuous statements in relation to the case involving the constitutionality of the Plunder Law which was then pending. Atty. De vera

CANON 11, CPR-

A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSIST ON

SIMILAR CONDUCT BY OTHERS. (1996 Bar Question)


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admitted the report in the November 6, 2002 issue of the Philippine Daily Inquirer that he “suggested that the Court must take steps to dispel once and for all these ugly rumors and reports” that “the Court would vote in favor of or against the validity of the Plunder Law” to protect the credibility of the Court. Is the statement of Atty. De Vera disrespectful to the courts? A: Indeed, freedom of speech includes the right to know and discuss judicial proceedings, but such right does not cover statements aimed at undermining the Court’s integrity and authority, and interfering with the administration of justice. Freedom of speech is not absolute, and must occasionally be balanced with the requirements of equally important public interests, such as the maintenance of the integrity of the courts and orderly functioning of the administration of justice.

Thus, the making of contemptuous statements directed against the Court is not an exercise of free speech; rather, it is an abuse of such right. Unwarranted attacks on the dignity of the courts cannot be disguised as free speech, for the exercise of said right cannot be used to impair the independence and efficiency of courts or public respect therefore and confidence therein. (In Re: Published Alleged Threats by Atty. Leonard de Vera, A.M. No. 01-12-03-SC, July 29, 2002) Q: Can a lawyer criticize the courts? A:

GR: Canon 11 – A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others. XPN: The fact that a person is a lawyer does not deprive him of the right, as enjoyed by every citizen, to comment on and criticize the actuations of a judge.

Note: What a lawyer can ordinarily say against a concluded litigation and the manner the judge handed down the decision therein may not generally be said to a pending action. The court, in a pending litigation, must be shielded from embarrassment and influence in performing the important duty of deciding it. On the other hand, once litigation is concluded, the judge who decided on it is subject to the same criticism as any other public official because then his ruling becomes public property and is thrown open to public consumption.

But it is the cardinal condition of all criticisms that it shall be bona fide, and shall not spill over the walls of decency and propriety. (Zaldivar v. Gonzales, G.R. Nos. 79690-707, Feb. 1, 1989)

Q: Members of the faculty of the UP College of Law published a statement on the allegations of plagiarism and misrepresentation relative to the Court’s decision in Vinuya v. Executive Secretary. The authors directly accused the Court of perpetrating extraordinary injustice by dismissing the petition of the comfort women said case. The insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of the said case, its dismissal on the basis of “polluted sources,” the Court’s alleged indifference to the cause of petitioners, as well as the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect. A: While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far. Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary. The court must “insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice.” The Court could hardly perceive any reasonable purpose for the faculty’s less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court’s honesty, integrity and competence in addressing the motion for its reconsideration. As if the case on the comfort women’s claims is not controversial enough, the UP Law faculty would fan the flames and invite resentment against a resolution that would not reverse the said decision. This runs contrary to their obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they have taken as attorneys, and not to promote distrust in the administration of justice. Their actions likewise constitute violations of Canons 10, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility. (Re: Letter of the UP Law Faculty entitled “Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the


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Allegations of Plagiarism and Misrepresentation in the Supreme Court.”( A.M. No. 10-10-4-SC, October 19, 2010)

Note: As an officer of the court and in order to maintain the dignity and respectability of the legal profession, a lawyer who appears in court must be properly attired. Consequently, the court can hold a lawyer in contempt of court if he does not appear in proper attire. Any deviation from the commonly accepted norm of dressing in court (barong or tie, not both) is enough to warrant a citing for contempt.

Note: The traditional attires for male lawyers in the Philippines are the long-sleeve Barong Tagalog or coat and tie. Female lawyers appear in semi-formal attires. Judges also appear in the same attire in addition to black robes.

Note: Punctuality is demanded by the respect which a lawyer owes to the court, the opposing counsel and to all the parties to the case. (Funa, 2009)

Q: After the parties had filed their respective briefs with the Court of Appeals and before the latter's resolution submitting the case for decision was released, respondent lawyers, Atty. Depasucat, and others filed a pleading "Manifestation of Usurpation of Authority of the Hon. Court of Appeals from a Self-Confessed Briber of Judges", which stated that plaintiff-appellant Uy had, in fact, confessed to bribing judges. Consequently, Uy filed a verified complaint against respondent lawyers for gross misconduct. Should the respondents be disciplined for having authored and filed the “Manifestation of Usurpation of Authority of the Hon. Court of Appeals from a Self-Confessed Briber of Judges”?

A: Yes. Respondents went overboard by stating in the Manifestation that complainant "had in fact confessed to bribery and telling one of the judges, after the judges allegedly refused to give in to their demands, by using illegally taped

conversations-both actual and/or by telephone". It belied their good intention and exceeded the bounds of propriety, hence not arguably protected; it is the surfacing of a feeling of contempt towards a litigant; it offends the court before which it is made. A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts. It must be remembered that the language vehicle does not run short of expressions which are emphatic but respectful, convincing but not derogatory, illuminating but not offensive. It has been said that a lawyer's language should be dignified in keeping with the dignity of the legal profession. It is the duty of Atty. Depasucat et.al. as members of the Bar to abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged. (Uy v. Depasucat, A.C. No. 5332, July 29, 2003) Note: The language of a lawyer, both oral and written, must be respectful and restrained in keeping with the dignity of the legal profession and with his behavioral attitude toward his brethren in the profession. The use of abusive language by counsel against the opposing counsel constitutes at the same time disrespect to the dignity of the court justice. Moreover, the use of impassioned language in pleadings, more often than not, creates more heat than light. (Buenaseda v. Flavier, G.R. No. 106719, Sept. 21, 1993) The duty to observe and maintain respect is not a one-way duty from a lawyer to a judge. A judge should also be courteous to counsel, especially those who are young and inexperienced and to all those appearing or concerned in the administration of justice. R.A. No. 9211 or the Tobacco Regulation Act of 2003, in order to foster a healthful environment, absolutely prohibits smoking in specified public places and designates smoking and non-smoking areas in places where the absolute ban on smoking does not apply. Under this law, the Court is generally considered a place where smoking is restricted, rather than absolutely banned. Exceptions to this characterization are the Court’s elevators and stairwells; the Court’s medical and dental clinics; and the Court’s cafeteria and other dining areas (including the Justices’ Lounge), together with their food preparation areas, where an absolute ban applies. In the areas where smoking restriction applies, the law requires that the Court designate smoking and non-smoking areas.

Section 6, in connection with Section 1, of Office Order No. 06-2009 entitled “Reiterating the Ban on Smoking as Provided for in Administrative Circular

Rule 11.01, Canon 11, CPR – A lawyer shall appear in court properly attired.

Rule 11.02, Canon 11, CPR – A lawyer shall punctually appear at court hearings.

Rule 11.03, Canon 11, CPR – A lawyer shall abstain from scandalous, offensive, or menacing language or behavior before the courts.


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No. 09-99 and Reiterated and Clarified in Memorandum Circular No. 01-2008A covers absolute smoking prohibition areas greater than those covered by R.A. 9211, which include all interior areas of the buildings of the courts and the areas immediately adjacent to these buildings. The Office Order still allows smoking within court premises (apparently referring to exterior areas), but such smoking has to be done in designated places. (Re: Smoking at the fire exit area at the back of the Public Information Office, A.M. No. 2009-23-SC, February 26, 2010)

Q: An administrative case and disbarment proceeding was filed against MDS, a Lady Senator for uttering in her privilege speech delivered in the Senate floor where she was quoted as saying that she wanted “to spit on the face of Chief Justice and his cohorts in the Supreme Court,” and calling the Court a “Supreme Court of idiots.” She alleged that it was considered as part of her Parliamentary immunity as such was done during the session. Is she correct?

A: Yes, because her statements, being part of her privilege speech as a member of Congress, were covered by the constitutional provision on parliamentary immunity. Indeed, her privilege speech is not actionable criminally or in a disciplinary proceeding under the Rules of Court.

However, as a member of the Bar, the Court wishes to express its deep concern about the language Senator Santiago used in her speech and its effect on the administration of justice. To the Court, the lady senator has undoubtedly crossed the limits of decency and good professional conduct. It is at once apparent that her statements in question were intemperate and highly improper in substance. MDS should have taken to heart in the first place the ensuing passage in In Re: Vicente Sotto that “x x x [I]f the people lose their confidence in the honesty and integrity of this Court and believe that they cannot expect justice therefrom, they might be driven to take the law into their own hands, and disorder and perhaps chaos would be the result.” No lawyer who has taken an oath to maintain the respect due to the courts should be allowed to erode the people’s faith in the judiciary. In this case, the lady senator clearly violated Canon 8, Rule 8.01 and Canon 11 of the Code of Professional Responsibility. (Pobre v. Senator Santiago, A.C. No. 7399, Aug. 25, 2009) Note: The lawyer’s duty to render respectful subordination to the courts is essential to the

orderly administration of justice. Hence, in the assertion of the client’s rights, lawyers – even those gifted with superior intellect, are enjoined to rein up their tempers. (Zaldivar v. Gonzalez, G.R. Nos. 79690-707 October 7, 1988)

However, every citizen has the right to comment upon and criticize the actuations of public officers. This right is not dismissed by the fact that the criticism is aimed at a judicial authority, or that it is articulated by a lawyer. Such right is especially recognized where the criticism concerns a concluded litigation, because the court’s actuations are thrown open to public consumption. Courts thus treat with forbearance and restraint a lawyer who vigorously assails their actuations for courageous and fearless advocates are the strands that weave durability into the tapestry of justice.

Note: As citizen and officer of the court, every lawyer is expected not only to exercise the right, but also to consider it his duty to expose the shortcomings and indiscretions of courts and judges. But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety.

Post litigation utterances or publications made by lawyers, critical of the courts and their judicial actuations, whether amounting to a crime or not, which transcend the permissible bounds of fair comment and legitimate criticism and thereby tend to bring them into dispute or to subvert public confidence in their integrity and in the orderly administration of justice, constitute grave professional misconduct which may be visited with disbarment or other lesser appropriate disciplinary sanctions by the SC in the exercise of the prerogatives inherent in it as the duly constituted guardian of the morals and ethics of the legal fraternity. (In Re: Almacen, G.R. No. L-27654, Feb. 18, 1970)

Q: Atty. Romeo Roxas was charged for contempt when he, in a letter addressed to Associate Justice Chico-Nazario, stated that Justice Nazario decided the cases in favor of Zuzuarregui, ordering Attys. Roxas and Pastor to pay the former P17,073,224.84 on considerations other than the pure merits of the case and called the SC a “dispenser of injustice”. He ended his letter by mocking her when he said “sleep well if you

Rule 11.04, Canon 11, CPR – A lawyer shall not attribute to a judge motives not supported by the record or have no materiality to the case.


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still can” and that “her earthly life will be judged by the Supreme Dispenser of Justice where only the merits of your honor’s life will be relevant and material and where technicalities can shield no one from his or her wrongdoings”. In the written explanation of Atty. Roxas, he extended apologies to Justice Nazario. He said he was merely exercising his rights to express a legitimate grievance or articulate fair criticisms of the court’s ruling. Moreover, according to him, instead of resorting to public criticisms, he chose to ventilate his criticisms in a very discreet and private manner by writing a personal letter. Should Atty. Roxas be punished for the contents of his letter? A: Yes. Atty. Roxas’ letter contains defamatory statements that impaired public confidence in the integrity of the Judiciary. The making of contemptuous statements directed against the court is not an exercise of free speech; rather, it is an abuse of such right. A letter furnished to all the members of the SC, even if a copy was not disseminated to the media, does not enjoy the mantle of right to privacy. Letters addressed to the individual justices in connection with the performance of their judicial functions become part of the judicial record and are matter of concern for the entire court. Atty. Roxas is guilty of indirect contempt of court for an improper conduct tending, directly and indirectly, to impede, obstruct or degrade the administration of justice; and with his contemptuous and defamatory statements, Atty. Roxas likewise violated Canon 11 of the CPR particularly Rules 11.03 and 11.04. (Roxas v. Zuzuarregui, et. al., G.R. No. 152072, July 12, 2007) Q: When is public comment and criticism of a court decision permissible and when would it be improper? A: A lawyer, like every citizen, enjoys the right to comment on and criticize the decision of a court. As an officer of the court, a lawyer is expected not only to exercise that right but also to consider it his duty to expose the shortcomings and indiscretions of courts and judges. But such right is subject to the limitations that it shall be bona fide. It is proper to criticize the courts and judges, but it is improper to subject them to abuse and slander, degrade them or destroy public confidence in them. Moreover, a lawyer shall not attribute to a judge, motives not supported by

the record or have no materiality in the case. (Rule 11.04, CPR) (1997 Bar Question) Note: A lawyer should be reminded of his primary duty to assist the court in the administration of justice. The relations between counsel and judge should be based on mutual respect and on a deep appreciation by one of the duties of the other. It is upon their cordial relationship and mutual cooperation that the hope of our people for speedy and efficient justice rests. (Abiera v. Maceda, A.C. No. RTJ-91-660, June 30, 1994) If the court official or employee or a lawyer is to be disciplined, the evidence against him should be substantial, competent and derived from derived from direct knowledge, not on mere allegations, conjectures, suppositions or on the basis of hearsay. (Cervantes v. Atty. Sabio, A.C. No. 7828, August 11, 2008)

Q: Who are considered as the proper authorities? A:

NATURE OF THE CASE

WHERE TO FILE

If administrative in nature

It shall be filed with the Office of the Court Administrator of the Supreme Court

If criminal and not purely administrative

It shall be filed with the Office of the Ombudsman

If it involves a Justice of the Supreme Court based on impeachable offenses

It must be coursed through the House of Representative and the Senate in accordance with the rules on impeachment. (CPR Annotated, PhilJA)

Note: An administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless the assailed order or decision is tainted with fraud, malice, or dishonesty. (Santiago III v. Justice Enriquez, Jr. A.M. No. CA-09-47-J, February 13, 2009)

Q: What are the rights and duties of a lawyer to criticize Courts?

Rule 11.05, Canon 11, CPR - A lawyer shall submit grievances against a Judge to the proper authorities only.


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A: 1. The fact that a person is a lawyer does not

deprive him of the rights, enjoyed by every citizen, to comment on and criticize the actuations of a judge subject to ethical standard.

2. The court, in a pending litigation; must be shielded from embarrassment or influence in its all-important duty of deciding the case. Once litigation is concluded, the judge who decided it is subject to the same criticisms as any other public official because his ruling becomes public property and is thrown open to public consumption.

3. It is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety (Zaldivar v. Gonzales, G.R. Nos. 79690-707, April 7, 1993).

4. The duty of the bar to support the judge against unjust criticism and clamor does not, however, preclude a lawyer from filing administrative complaints against erring judges or from acting as counsel for clients who have legitimate grievances against them. But the lawyer should file charges against the judge before the proper authorities only and only after the proper circumspection and without the use of disrespectful language and offensive personalities so as not to unduly burden the court in the discharge of its function.

Note: Cardinal condition of criticism is that it shall be bona fide and shall not spillover the walls of decency and propriety.

3. ASSISTANCE IN THE SPEEDY AND EFFICIENT

ADMINISTRATION OF JUSTICE

Note: The filing of another action concerning the same subject matter, in violation of the doctrine of res judicata, runs contrary to this Canon. (Lim v. Montano, A.C. No. 5653, February 27, 2006).

Note: A lawyer must exert every effort and consider it his duty to assist in the speedy and efficient administration of justice.

Q: Jardin engaged the services of Atty. Villar Jr. to represent him in a collection case. The case went its course, but later despite several extensions of time given by the trial court, Atty. Villar Jr. failed to file his formal offer of exhibits. The dismissal of the collection case prompted Jardin to file a verified affidavit-complaint for the disbarment of Atty. Villar Jr. with the Court, wherein he alleged that after the dismissal of the collection case, he terminated the services of Atty. Villar Jr. as his counsel; that Atty. Villar Jr. failed to return the originals of the documentary exhibits entrusted to him; and that Atty. Villar Jr. finally handed over the documents only as an aftermath of a heated argument he had with the Jardin's wife. Was Atty. Villar Jr. remiss in his duties as counsel when he failed to file his formal offer of exhibit?

A: Yes. The record clearly shows that Atty. Villar Jr. has been languid in the performance of his duties as counsel for the complainant. He was given by the trial court several extensions of time. Therefore, Atty. Villar Jr. had three (3) months and nine (9) days within which to file the formal offer of exhibits. Atty. Villar Jr. did not bother to give an explanation even in mitigation or extenuation of his inaction. Manifestly, Atty. Villar Jr. has fallen short of the competence and diligence required of every member of the law. It is indeed dismaying to note Atty. Villar Jr.’s patent violation of his duty as a lawyer. He committed a serious transgression when he failed to exert his utmost learning and ability and to give entire devotion to his client's cause. His client had relied on him to file the formal offer of exhibits among other things. But he failed him. Resulting as it did in the dismissal of the case, his failure constitutes inexcusable default. (Jardin v. Atty. Villar, Jr., A.C. No. 5474, Aug. 28, 2003) Q: Judgment was rendered against Eternal Gardens ordering it to reconvey the cemetery to the rightful owners. Despite the final decision of the SC, Eternal Gardens was able to prevent the execution for 17 years, rendering the judgment ineffectual. They filed several petitions and motions for reconsideration with the trial court and the CA despite the fact that it would never prosper as the trial court’s decision had long become final before the said petitions were

CANON 12, CPR - A LAWYER SHALL EXERT EFFORT AND

CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT ADMINISTRATION

OF JUSTICE (1991,1994,1996,2003 Bar Questions)


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filed. Did the lawyers violate Canon 12 of the CPR? A: While lawyers owe their entire devotion to the interest of the client and zeal in the defense of their client’s right, they are also officers of the court, bound to exert every effort to assist in the speedy and efficient administration of justice. They should not misuse the rules of procedure to defeat the ends of justice or unduly delay a case, impede the execution of a judgment or misuse court processes. The facts and the law should advise them that a case such as this should not be permitted to be filed to merely clutter the already congested judicial dockets. They do not advance the cause of law or their clients by commencing litigations that for sheer lack of merit do not deserve the attention of the courts. (Eternal Gardens Memorial Park Corporation v. CA, G.R. No. 123698, Aug. 5, 1998) Note: All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial or administrative bodies. (Sec. 16, Art. III, 1987 Constitution)

Q: Is a lawyer guilty of an unethical act when he employs means to delay the disposition of the case? A: Yes, because Canon 12 states that – A lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. Note: The duty of a lawyer to assist in the speedy and efficient administration of justice includes the duty to refrain from talking to his witness during a break or recess in the trial while the witness is still under examination. The dilatory tactics of the defense counsel and the failure of both the judge and the fiscal to take effective counter measures to obviate the delaying acts constitute obstruction of justice. (People v. Jardin, G.R. Nos. L-33037-42, Aug. 17, 1983)

Q: What are acts which amount to obstruction of justice? A: Instructing a complaining witness not to appear at trial, asking a client to plead guilty to a crime he did not commit, advising a client to escape from prison, employing dilatory tactics, prosecuting clearly frivolous cases or appeals, filing multiple actions.

Note: A newly hired counsel who appears in a case in the midstream is presumed and obliged to acquaint himself with all the antecedent processes and proceedings that have transpired in the record prior to his takeover. (Villasis v. CA, G.R. Nos. L-36874-76, Sept. 30, 1974)

Q: What is forum-shopping? A: It is the improper practice of filing several actions or petitions in the same or different tribunals arising from the same cause and seeking substantially identical reliefs in the hope of winning in one of them. The omission to disclose pendency of appeal or prior dismissal of his case by a court of concurrent jurisdiction with intent of seeking a favorable opinion. The prohibition includes the filing of petitions for writs of certiorari, mandamus and prohibition when there are similar petitions already filed or pending. (CPR Annotated, PhilJA) Note: The mere filing of several cases based on the same incident does not necessarily constitute forum shopping. The question is whether the several actions filed involve the same transactions, essential facts and circumstances. If they involve essentially different facts, circumstances and causes of action, there is no forum shopping. (Paredes v. Sandiganbayan, G.R. No. 108251, Jan. 31, 1996) The essence of forum shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment. (Foronda v. Atty. Guerrero, A.C. No. 5469, Aug. 10, 2004)

Q: How is forum shopping committed? A:

1. Going from one court to another in the hope of securing a favorable relief in one court, which another court has denied.

Rule 12.01, Canon 12, CPR – A lawyer shall not appear for trial unless he has adequately prepared himself on the law and the facts of his case, the evidence he will adduce and the order of its preference. He should also be ready with the original documents for comparison with the copies.

Rule 12.02, Canon 12, CPR – A lawyer shall not file multiple actions arising from the same cause. (1991, 1997, 1998, 2002 Bar Questions)


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2. Filing repetitious suits and proceedings in different courts concerning the same subject matter after one court has decided the suit with finality; or

3. Filing a similar case in a judicial court after receiving an unfavorable judgment from an administrative tribunal.

Q: Who signs the forum shopping certification?

A: GR: The party himself as he has personal knowledge of the facts therein stated. XPN: Counsel, when clothed with a special power of attorney to do so. (The lawyer shall certify that he has personal knowledge of the facts therein stated and shall give justifiable reason or explanation why the party himself cannot sign the same).

Note: In case of a juridical person, its lawyer authorized through a board resolution must sign the certification. Should there be more than one plaintiff or petitioner, all of them must execute the certification and verification. Unless, it is a suit involving conjugal property, in such a case, the husband alone may execute the same.

Q: The trial court declared Paxton Development Corporation (PDC) the lawful owner of the subject lots. CA affirmed. Top Rate as the losing party sought to have the said resolution set aside and thereafter filed with the Supreme Court a motion for extension of time to file a petition for review from the adverse CA decision and resolution. The motion contained a "verification/certification" under oath as to non-forum shopping, without mentioning the pending manifestation and motion with the CA, which was notarized by Atty. Manlangit. Both Atty. Manlangit and Atty. Gana knew the relevant case status after having invariably acted as counsel of Top Rate before the trial court, the Court of Appeals and the Supreme Court. Top Rate then filed a series of motions with the SC, all of which failed to state that Top Rate still has a pending manifestation and motion with the CA. It was only when it withdrew its Petition for Review on Certiorari that Top Rate bared before the SC the existence of the said manifestation and motion pending with the CA. Should Top Rate and its counsel be found guilty of forum shopping?

A: Yes. Although Top Rate as principal party executed the several certifications of non-forum shopping, Atty. Gana and Atty. Manlangit cannot deny responsibility therefore since Atty. Manlangit notarized the certifications and both of them definitely knew the relevant case status after having invariably acted as counsel of Top Rate before the trial court, the Court of Appeals and the Supreme Court. Attys. Gana and Manlangit of the Gana and Manlangit Law Office, counsel of record of Top Rate, are administratively liable for grotesque violations of the Code of Professional Responsibility.

Forum shopping is committed by a party who institutes two or more suits in different courts, either simultaneously or successively, in order to ask the courts to rule on the same or related causes or to grant the same or substantially the same relief, on the supposition that one or the other court would make a favorable disposition or increase a party's chances of obtaining a favorable decision or action. It is an act of malpractice for it trifles with the courts, abuses their processes, degrades the administration of justice and adds to the already congested court dockets. What is critical is the vexation brought upon the courts and the litigants by a party who asks different courts to rule on the same or related causes and grant the same or substantially the same relief and in the process creates the possibility of conflicting decisions being rendered by different forums upon the same issues, regardless of whether the court in which one of the suits was brought has no jurisdiction over the action. (Top Rate Construction and General Services v. Paxton Devt. Corp., G.R. No. 151081, Sept. 11, 2003) Note: The principle of non-forum shopping applies not only with respect to suits filed in courts but also in connection with litigations commenced in courts while an administrative proceeding is pending, in order to defeat administrative processes and in anticipation of an unfavorable court ruling.

Q: What are the possible consequences of forum shopping? A:

1. Summary dismissal of the multiple petition or complaint

2. Penalty for direct contempt of court on the party and his lawyer

3. Criminal action for a false certification of non forum shopping and indirect contempt


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4. Disciplinary proceedings for the lawyer concerned. (Sec. 5, Rule 7, 1997 Rules of Civil Procedure) (1998 Bar Question)

Q: J sustained serious physical injuries due to a motor vehicle collision between the car she was driving and a public utility bus, requiring her confinement for 30 days at the Makati Medical Center. After her release from the hospital, she filed a criminal complaint against the bus driver for serious physical injuries through reckless imprudence before the Makati Prosecutor’s Office. She also filed a civil complaint before the Paranaque Regional Trial Court against the bus operator and driver for compensatory, moral, exemplary and other damages. Aside from the two complaints, she additionally filed an administrative complaint against the bus operator with the Land Transportation Franchising and Regulatory Board for cancellation or suspension of the operator’s franchise. Would you say that she and her lawyer were guilty of forum-shopping?

A: No. There is no forum-shopping in the simultaneous filing of a criminal case and a civil case in this instance. Article 33 of the Civil Code allows the filing by an injured party of a civil action for damages entirely separate and distinct from the criminal action in cases of defamation, fraud, and physical injuries. There is no forum-shopping involved in filing an administrative complaint against the bus operator with the Land Transportation Franchising and Regulatory Board. The cancellation or suspension of the operator’s franchise is for a different cause of action. (1997 Bar Question) Q: Give five (5) instances of forum-shopping.

A:

1. When, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another

2. When he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other court would make a favorable disposition(Benguet Electric Cooperative, Inc. v. NEA, G.R. No. 93924, January 23, 1991)

3. Filing a second suit in a court without jurisdiction (New Pangasinan Review, Inc. v. NLRC,G.R. No. 85939, April 19, 1991)

4. Filing an action in court while the same cause of action is still pending in an administrative proceeding (Earth Minerals

Exploration, Inc. v. Macaraig, G.R. No. 78569, February 11, 1991)

5. When counsel omits to disclose the pendency of an appeal, in filing a certiorari case (Collado v. Hernando, G.R. No.L-43866, May 30, 1988). (2002 Bar Question)

Note: The committee suggests full credit for any 3 of the above enumerated instances of forum-shopping.

Note: The court censures the practice of counsels who secures repeated extensions of time to file their pleadings and thereafter simply let the period lapse without submitting the pleading or even an explanation or manifestation of their failure to do so. (Achacoso v. CA, G.R. No. L-35867, June 28, 1973). Asking for extension of time must be in good faith. Otherwise, it is an obstruction of justice and the lawyer is subject to discipline. (CPR Annotated, PhilJA) The same rule applies more forcefully to motion for continuance. Postponement is not a matter of right but of sound judicial discretion. (Edrial v. Quilat-Quilat, G.R. No. 133625, Sept. 6, 2000) Note: It is understandable for a party to make full use of every conceivable legal defense the law allows it. However, of such attempts to evade liability to which a party should respond, it must ever be kept in mind that procedural rules are intended as an aid to justice, not as means for its frustration. Once a judgment becomes final and executory, the prevailing party should not be denied the fruits of his victory by some subterfuge devised by the losing party. Unjustified delay in the enforcement in the enforcement of a judgment sets at naught the role of the courts in disposing justiciable controversies with finality. (Aguilar v. Manila Banking Corporation, GR No. 157911, September 19, 2006)

Rule 12.03, Canon 12, CPR – A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so. (2003 Bar Question)

Rule 12.04, Canon 12, CPR – A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes.


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Lawyers should not resort to nor abet the resort of their clients, to a series of actions and petitions for the purpose of thwarting the execution of a judgment that has long become final and executory. (Cobb-Perez v. Lantin, No. L-22320, May 22, 1968)

Q: What is the reason for the rule? A: To prevent the suspicion that he is coaching the witness what to say during the resumption of the examination. Rationale: To uphold and maintain fair play with the other party and to prevent the examining lawyer from being tempted to coach his own witness to suit his purpose.

Q: Who is a witness? A: A human instrumentality through which the law and its ministers, the judges and lawyers, endeavor to ascertain the truth and to dispense justice to the following parties.

Q: What are the guidelines in interviewing a witness? A:

1. A lawyer may interview a witness in advance of the trial to guide him in the management of the litigation;

2. A lawyer may also interview a “prospective witness” for the opposing side in any civil and criminal action without the consent of opposing counsel or party;

3. A lawyer must properly obtain statements from witnesses whose names were furnished by the opposing counsel or interview the employees of the opposing party even though they are under subpoena to appear as witnesses for the opposite side;

4. If after trial resulting in defendant’s conviction, his counsel has been advised that a prosecution witness has committed perjury, it is not only proper but it is the lawyer’s duty to endeavor honorable means to obtain such witness’ reaction, even without advising the public prosecutor of his purpose and even though the case is pending appeal; and

5. An adverse party, though he may be used as a witness, is not however a witness within the meaning of the rule permitting a lawyer to interview the witness of the opposing counsel.

Note: A lawyer shall avoid testifying in behalf of his client. The function of a witness is to tell the facts as he recalls them in answer to questions while the function of an advocate is that of a partisan. It is difficult to distinguish between the zeal of an advocate and the fairness and impartiality of a disinterested witness. Although the law does not forbid an attorney to be a witness and at the same time an attorney in a cause, the courts prefer that counsel should not testify as a witness unless it is necessary and that they should withdraw from the active management of the case. (PNB v. Uy Teng Piao, G.R. No. L- 35252, Oct. 21, 1932) (2001, 2005 Bar Questions)

Q: What are the sanctions on a lawyer who shall knowingly assist a witness to misrepresent himself or to impersonate another? A: Art. 184, Revised Penal Code provides: The lawyer who presented a witness knowing him to be a false witness is criminally liable for “Offering False Testimony in Evidence”. Note: The lawyer who is guilty of the above is both criminally and administratively liable.

Q: Is the witness who committed the misrepresentation criminally liable? A: Yes. The witness who commits the misrepresentation is criminally liable for “False Testimony” either under Art. 181, 182 or 183, Revised Penal Code, depending upon the nature of the case. Note: The lawyer who induces a witness to commit false testimony is equally guilty as the witness. Q: Who commits subordination of perjury? A: It is committed by a person who knowingly and willfully procures another to swear falsely and the witness subordinated does testify under circumstances rendering hm guilty of perjury. (U.S. v. Ballena, G.R. No. L-6294, February 10, 1911).

Rule 12.05, Canon 12, CPR – A lawyer shall refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination.

Rule 12.06, Canon 12, CPR – A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another.


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Q: Nolito Boras was convicted of statutory rape. The victim, a minor, testified and the manner of examination was excessive. The lawyer of Boras was asking questions like, “Did you have any opportunity at the time you were raped to hold the penis of Nolito Boras?”, “At the time, when you were raped by Nolito Boras, is his penis hard or soft?”, and “Did you see your uncle Cerilo after the accused stop pushing and pulling his penis to your vagina or while he was still in the process of pushing and pulling his penis to your vagina?” Did the lawyer of Nolito Boras violate Rule 12.07? A: Yes. It must be stressed that in dealing with rape cases of children, especially those below 12 years of age, due care must be observed by the trial court in handling the victim. In fact, more often than not, the gruelling experience in the trial court in the course of direct examination and cross-examination is more traumatic than the fact of the rape itself. On such occasions, mishandling of victims lead to psychological imbalances which, if not properly treated by medical experts will lead to an abnormal behavioral response against the idea of sex itself and disturbed interaction with the opposite or same sex. By subjecting her into explaining whether she was forced or intimidated is excessive. It is because proof of force and intimidation is unnecessary in statutory rape. Considering that there is a medical report substantiating the allegations made by the victim, the manner of examination of the victim must be tempered. Especially in this case since the child is only six years old who remains uncorrupted. (People v. Boras, G.R. No. 127495, Dec. 22, 2000) Q: What is the obligation of a witness? A: A witness must answer questions although his answer may tend to establish a claim against him. Q: What are the rights of a witness? A:

1. To be protected from irrelevant, improper, or insulting questions and from harsh or insulting demeanor;

2. Not to be detained longer than the interest of justice requires;

3. Not to be examined except only as to matters pertinent to the issue;

4. Not to give any answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or

5. Not to give an answer which will tend to degrade his reputation, unless it be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous and final conviction for an offense. (Sec. 3, Rule 132 of RRC)

Note: It was highly inconsiderate for the prosecutor and the defense counsel to trade quips at the precise time the victim of rape was reviving her harrowing experience. Courts are looked up to by the people with high respect and are regarded as places were litigants are heard, rights and conflicts are settled and justice solemnly dispensed. Levity has no place in the courtroom during the examination of the victim of rape, and particularly at her expense. (People v. Nuguid, G.R. No. 148991, Jan. 21, 2004)

Q: What is the reason for the rule? A: The function of a witness is to tell the facts as he recalls them in answer to questions. The function of an advocate is that of a partisan. It is difficult to distinguish between the zeal of an advocate and the fairness and impartiality of a disinterested witness. Q: What are the instances when a lawyer may not testify as a witness in a case which he is handling for a client? A: TARCC

1. When as an attorney, he is to Testify on the theory of the case

Rule 12.07, Canon 12, CPR – A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him.

Rule 12.08, Canon 12, CPR – A lawyer shall avoid testifying in behalf of his client, except:

a. On formal matters, such as the mailing, authentication or custody of an instrument, and the like; or

b. On substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.


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2. When such would Adversely affect any lawful interest of the client with respect to which confidence has been reposed on him

3. Having accepted a Retainer, he cannot be a witness against his client;

4. He cannot serve Conflicting interests 5. When he is to violate the Confidence of

his client Q: What are the instances when a lawyer may testify as a witness in a case which he is handling for a client? A: FETAD

1. On Formal matters, such as the mailing, authentication or custody of instrument and the like;

2. Acting as an Expert on his fee; 3. On substantial matters in cases where his

Testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel;

4. Acting as an Arbitrator; 5. Deposition.

4. RELIANCE ON MERITS OF CASE, NOT FROM

IMPROPER INFLUENCE UPON THE COURTS

Note: A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court. Rationale: To protect the good name and reputation of the judge and the lawyer. Lawyers should not seek for opportunity to cultivate familiarity with judges. A lawyer who resorts to such practices of seeking familiarity with judges dishonors his profession and a judge who consents to them is unworthy of his high office.

It is improper for a litigant or counsel to see a judge in chambers and talk to him about a matter related to the case pending in the court of said judge. (Austria v. Masaquel, G.R. No. 22536, August 31, 1967)

Q: Atty. J requested Judge K to be a principal sponsor at the wedding of his son. Atty. J met Judge K a month before during the IBP-sponsored reception to welcome Judge K into the community, and having learned that Judge K takes his breakfast at a coffee shop near his (Judge K's) boarding house, Atty. J made it a point to be at the coffee shop at about the time that Judge K takes his breakfast. Comment on Atty. J's acts. Do they violate the Code of Professional Responsibility?

A: Yes, his actions violate the Code of Professional Responsibility. Canon 13 of the said Code provides that a lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court. Rule 13.01 of the same Code provides that a lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for, cultivating familiarity with judges. Atty. J obviously sought opportunity for cultivating familiarity with Judge K by being at the coffee shop where the latter takes his breakfast, and is extending extraordinary attention to the judge by inviting him to be a principal sponsor at the wedding of his son. (2000 Bar Question)

Q: When can there be prejudicial publicity? A: There must be an allegation and proof that the judges have been unduly influenced, not simply that they might be, by barrage of publicity. (CPR Annotated, PhilJA) Note: The restriction does not prohibit issuances of statements by public officials charged with the duty of prosecuting or defending actions in court. Note: Public statements to arouse public opinion for or against a party are generally condemned.

Q: What is the test to determine whether public statements are contemptuous?

CANON 13, CPR - A LAWYER SHALL RELY UPON THE MERITS

OF HIS CAUSE AND REFRAIN FROM ANY IMPROPRIETY WHICH TENDS TO INFLUENCE,

OR GIVES THE APPEARANCE OF INFLUENCING THE COURT.

(1994, 1997,2000,2001,2003 Bar Questions)

Rule 13.01, Canon 13, CPR – A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with judges.

Rule 13.02, Canon 13, CPR – A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.


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A: The character of the act done and its direct tendency to prevent and obstruct the discharge of official duty. In a concluded litigation, a lawyer enjoys a wider latitude of comment on or criticize the decision of a judge of his actuation. Thus, it has been held that a newspaper publication tending to impede, obstruct, embarrass or influence the courts in administering justice in a pending case constitutes criminal contempt, but the rule is otherwise after the litigation is ended. (In re: Loazano, 54 Phil. 801, July 24, 1930) Q: Dumbledore, a noted professor of commercial law, wrote an article on the subject of letters of credit, which was published in the IBP Journal. Assume he devoted a significant portion of the article to a commentary on how the Supreme Court should decide a pending case involving the application of the law on letters of credit. May he be sanctioned by the Supreme Court? Explain. A: Professor Dumbledore may be sanctioned by the Supreme Court. Rule 13.02 of the CPR provides that “a lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.” The Court in a pending litigation must be shielded from embarrassment or influence in its duty of deciding the case. Q: Assume Dumbledore did not include any commentary on the case. Assume further after the Supreme Court decision on the case had attained finality, he wrote another IBP Journal article, dissecting the decision and explaining why the Supreme Court erred in all its conclusions. May he be sanctioned by the Supreme Court? Explain. A: He may not be sanctioned by the Supreme Court. Once a litigation is concluded, the judge who decided it is subject to the same criticism as any other public official because his decision becomes public property and is thrown open to public consumption. The lawyer enjoys a wide latitude in commenting or criticizing the judge’s decision, provided that such comment or criticism shall be bona fide and not spill over the bounds of decency and propriety. (2008 Bar Question)

Note: As it will be contrary to the principle of separation of powers. All lawyers must uphold, respect and support the independence of the judiciary. This independence from interference is made to apply against all branches and agencies of the government. (Funa. 2009) The Supreme Court accordingly administered a reprimand to Bumanlag for gross ignorance of law and of the Constitution in having asked the President to set aside by decree the Court’s decision which suspended him for two years from the practice of law. (De Bumanlag v. Bumanlag, A.M. No. 188, Nov. 29, 1976)

D. THE LAWYER AND THE CLIENT

Attorney-Client Relationship (1995,1997,1999,2001,2002 Bar Questions)

Q: What is the nature of attorney-client relationship? A:

1. Strictly personal – Prohibits the delegation of work without the client’s consent.

2. Highly confidential

a. Communication made in the course

of lawyers professional employment; and

b. Communication intended to be confidential.

3. Fiduciary

a. Hold in trust all moneys and

properties of his client that may come into his possession;

b. When a lawyer enforces a charging lien against his client, the relationship is terminated; and

c. An attorney cannot represent adverse interest unless the parties consent to the representation after full disclosure of facts.

Q: Is a contract necessary in order to have a professional relationship between a lawyer and a client? A: No, the absence of a written contract will not preclude a finding that there is a professional relationship. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied.

Rule 13.03, Canon 13, CPR – A lawyer shall not brook or invite interference by another branch or agency of the government in the normal course of judicial proceedings.


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It is sufficient, to establish the professional relation, that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession. An acceptance of the relation is implied on the part of the attorney from his acting on behalf of his client in pursuance of a request from the latter.

Note: If a person, in respect to his business affairs or any troubles of any kind, consults with his attorney in his professional capacity with the view to obtaining professional advice or assistance and the attorney voluntarily permits or acquiesce in such consultation, as when he listens to his client’s preliminary statement of his case or gives advice thereon, then the professional employment is regarded as established just as effective as when he draws his client’s pleading or advocates his client’s cause in court. (Dee v. CA, G.R. No. 77439, Aug. 24, 1989)

Q: How is a lawyer-client relationship formed? A:

1. Oral – When the counsel is employed without a written agreement, but the conditions and amount of attorney’s fees are agreed upon.

2. Express – when the terms and conditions including the amount of fees are explicitly stated in a written document, which may be a private or public document. Written contract of attorney’s fees is the law between the lawyer and the client.

3. Implied – When there is no agreement, whether oral or written, but the client allowed the lawyer to render legal services not intended to be gratuitous without objection and client is benefited by reason thereof.

Note: While a written agreement for professional services is the best evidence to show the relation, formality is not an essential element of the employment of an attorney. The absence of a written contract will not preclude a finding that there is a professional relationship. Q: What are the advantages of a written contract between the Lawyer and the Client? A:

1. It is conclusive as to the amount of compensation.

2. In case of unjustified dismissal of an attorney, he shall be entitled to recover from the client full compensation stipulated in the contract (RA 636).

Q: What are the rules protecting attorney-client relationship? A:

1. Best efforts must be exerted by the attorney to protect his client’s interest;

2. The attorney must promptly account for any fund or property entrusted by or received for his client;

3. An attorney cannot purchase his client’s property or interest in litigation;

4. The privacy of communications shall at all times upheld;

5. An attorney cannot represent a party whose interest is adverse to that of his client even after the termination of the relation.

Q: What are the three principal types of professional activity that a licensed attorney at law generally engages in, in the practice of his profession? A: LAP

1. Legal advice and instructions to clients to inform them of their rights and obligations;

2. Appearance for clients before public tribunals which possess power and authority to determine rights of life, liberty, and property according to law, in order to assist in proper interpretation and enforcement of law; and

3. Preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary layman. (CPR Annotated, PhilJA)

Q: Uy engaged the services of Atty. Gonzales to prepare and file a petition for the issuance of a new certificate of title. Uy confided with him the circumstances surrounding the lost title and discussing the fees and costs. When the petition was about to be filed, Atty. Gonzales went to Uy’s office and demanded a certain amount from him other than what they had previously agreed upon. Uy found out later that instead of filing the petition for the issuance of a new certificate of title, Atty. Gonzales filed a letter-complaint against him with the Office of the Provincial Prosecutor for “falsification of public documents.” The letter-complaint contained facts and circumstances pertaining to the transfer certificate of title that was the subject matter of the petition which Atty. Gonzales was supposed to have filed. Should Atty. Gonzales be suspended for violating the lawyer-client relationship when he filed a complaint for


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“falsification of public documents” against his client using facts connected with the latter’s petition?

A: No. As a rule, an attorney-client relationship is said to exist when a lawyer voluntarily permits or acquiesces with the consultation of a person, who in respect to a business or trouble of any kind, consults a lawyer with a view of obtaining professional advice or assistance. It is not essential that the client should have employed the attorney on any previous occasion or that any retainer should have been paid, promised or charged for, neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had, for as long as the advice and assistance of the attorney is sought and received, in matters pertinent to his profession. Evidently, the facts alleged in the complaint for “estafa through falsification of public documents” filed by Atty. Gonzales against Uy were obtained by Atty. Gonzales due to his personal dealings with Uy. Whatever facts alleged by Atty. Gonzales against Uy were not obtained by Atty. Gonzales in his professional capacity but as a redemptioner of a property originally owned by his deceased son and therefore, when Atty. Gonzales filed the complaint for estafa against Uy, which necessarily involved alleging facts that would constitute estafa, Atty. Gonzales was not, in any way, violating Canon 21. Clearly, there was no attorney-client relationship between Atty. Gonzales and Uy. The preparation and the proposed filing of the petition was only incidental to their personal transaction. (Uy v. Atty. Gonzales, A.C. No. 5280, Mar. 30, 2004)

1. AVAILABILITY OF SERVICE WITHOUT

DISCRIMINATION

Rationale: The poor and indigent should not be further disadvantaged by lack of access to the Philippine legal system.

Q: Does a lawyer have a right to decline employment? A:

GR: A lawyer is not obliged to act as legal counsel for any person who may wish to

become his client. He has the right to decline employment.

XPN:

1. A lawyer shall not refuse his services to the needy (Canon 14);

2. He shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life or because of his own opinion regarding the guilt of said person (Rule 14.01); (1990, 1993, 2000, 2002, 2006 Bar Questions)

3. He shall not decline, except for serious and efficient cause like a. If he is not in a position to carry

out effectively or competently; b. If he labors under a conflict of

interest between him and the prospective client (Rule 14.03).

Q: What is the rationale for the establishment and operation of legal aid offices in all chapters of the IBP? A: Legal aid is not a matter of charity. It is a means for the correction of social imbalances that may and often do lead to injustice, for which reason it is a public responsibility of the Bar. The spirit of public service should, therefore, underlie all legal aid offices. The same should be so administered as to give maximum possible assistance to indigent and deserving members of the community in all cases, matters and situations in which legal aid may be necessary to forestall an injustice. (Public Service, Sec. 1, Art. 1, IBP Guidelines on Legal Aid) Q: Are there instances where a lawyer has the duty to decline employment? A: A lawyer should decline no matter how attractive the fee offered may be if its acceptance will involve: RACCAA

1. A violation of any of the Rules of the legal profession;

2. Advocacy in any manner in which he had intervened while in the government service;

3. Nullification of a Contract which he prepared;

4. Employment with a Collection agency which solicits business to collect claims;

5. Employment, the nature of which might easily be used as a means of Advertising his professional services of his skill; or

CANON 14, CPR - A LAWYER SHALL NOT REFUSE HIS

SERVICES TO THE NEEDY. (1990,1992,2006 Bar Questions)


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6. Any matter in which he knows or has reason to believe that he or his partner will be an essential witness for the prospective client. (1993 Bar Question)

Q: What are the ethical considerations in taking a bad case? A:

1. Criminal case – A lawyer may accept a losing criminal case because every accused is presumed innocent until proven guilty and is entitled to counsel.

2. Civil case - The rules and ethics of the

profession enjoin a lawyer from taking a bad case.

Q: What are the reasons why a lawyer may not accept a “losing” civil case? A:

1. The attorney’s signature in every pleading constitutes a certificate by him that there is good cause to support it and that it is not interposed for delay, and willful violation of such rule shall subject him to disciplinary action;

2. It is the attorney’s duty to “counsel or maintain such actions or proceedings only as appears to him to be just and only such defenses as he believes to be honestly debatable under the law”;

3. A lawyer is not to encourage either the commencement or the continuance of an action or proceeding, or delay any man’s cause, for any corrupt motive or interest; and

4. A lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or injure the opposite party or to work oppression or wrong.

Q: Is there an instance when a lawyer may accept a losing civil case? A: Yes, provided that, in so doing, he must not engage in dilatory tactics and must advise his client about the prospects and advantage of settling the case through a compromise. (1996, 2001, 2002, 2005 Bar Question)

a. Services Regardless of Person’s Status

Rule 14.01 is applicable only in criminal cases. In criminal cases, a lawyer cannot decline to represent an accused or respondent because of his opinion that the said person is guilty of the charge or charges filed against him. In representing the accused or respondent, the lawyer must only use means which are fair and honorable. (Sec. 20[I], Rule 138, RRC) Rule 14.01 is not applicable in civil cases because it is the duty of an attorney to counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law.” (Sec. 20[c], Rule 138, RRC)

Q: Atty. DD’s services were engaged by Mr. BB as defense counsel in a lawsuit. In the course of the proceedings, Atty. DD discovered that Mr. BB was an agnostic and a homosexual. By reason thereof, Atty. DD filed a motion to withdraw as counsel without Mr. BB’s express consent. Is Atty. DD’s motion legally tenable? Reason briefly.

A: No. Atty. DD’s motion is not legally tenable. He has no valid cause to terminate his services. His client, Mr. BB, being an agnostic and homosexual, should not be deprived of his counsel’s representation solely for that reason.

A lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life or because of his own opinion regarding the guilt of said person. (Canon 14, Rule 14.01, CPR) (2004 Bar Question)

b. Services as Counsel de Officio

Q: What is the protection given by law to poor litigants who cannot afford the services of a lawyer?

Rule 14.01, Canon 14, CPR - A lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person.

Rule 14.02, Canon 14, CPR – A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de oficio or as amicus curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid. (1991, 1993, 1994, 1996, 1998, 2001, 2002, 2004, 2006 Bar Question)


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A: A court may assign an attorney to render professional aid free of charge to any party in case, if upon investigation it appears that the party is destitute and unable to employ an attorney, and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to render the required service, unless he is excused therefrom by the court for sufficient cause shown. (Sec. 31, Rule 138, RRC) Q: Who may be appointed as counsel de oficio? A:

1. Members of the bar in good standing; 2. Any person, resident of the province and

of good repute for probity and ability, in localities without lawyers.

Q: What are considered in appointing a counsel de oficio? A:

1. Gravity of offense; 2. Difficulty of questions that may arise; and 3. Experience and ability of appointee.

Q: A criminal complaint was filed against Bermas for the crime of rape. The Second Assistant Prosecutor issued a certification that the accused has waived his right to preliminary investigation. On the day of the scheduled arraignment, the accused was brought before the trial court without counsel. The court assigned a PAO attorney to be the counsel de officio who, during trial also made a request that she be relieved from the case. Another counsel was thereafter assigned as the new counsel de officio. When said new counsel for the accused failed to appear before the court for their presentation of evidence, the Court appointed another counsel de officio but, again, said counsel asked to be relieved from the case. The newly appointed counsel also failed to appear before the court. Despite the said events, the lower court convicted the accused of death penalty for the violation of the crime of rape. The defense counsel claimed that the accused was deprived of due process, was denied his Constitutional right to effective and vigilant counsel and his Constitutional right to be tried by an impartial judge. Is there a violation of due process and was denied of his Constitutional right to effective and vigilant counsel?

A: Yes. The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere propounding of standard questions and objections. The right to counsel means that the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedures, essential laws and existing jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance and not a simple perfunctory representation. It is never enough that accused be simply informed of his right to counsel; he should also be asked whether he wants to avail himself of one and should be told that he can hire a counsel of his own choice if he so desires or that one can be provided to him at his request. A counsel de oficio is expected to do his utmost. A mere pro-forma appointment of de oficio counsel who fails to genuinely protect the interests of the accused merits disapprobation. The exacting demands expected of a lawyer should be no less than stringent when one is a counsel de officio. He must take the case not as a burden but as an opportunity to assist in the proper dispensation of justice. No lawyer is to be excused from this responsibility except only for the most compelling and cogent reasons. Canon 18 of the Code of Professional Responsibility requires every lawyer to serve his client with utmost dedication, competence and diligence. He must not neglect a legal matter entrusted to him, and his negligence in this regard renders him administratively liable. Obviously, in the instant case, the aforenamed defense lawyers did not protect, much less uphold, the fundamental rights of the accused. Instead, they haphazardly performed their function as counsel de oficio to the detriment and prejudice of the accused Sevilleno, however guilty he might have been found to be after trial. (People v. Bermas, G.R. No. 120420. April 21, 1999)


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c. Valid Grounds for Refusal

Q: When may refusal of a counsel to act as counsel de oficio be justified on grounds aside from the reasons of health, extensive travel abroad, or similar reasons of urgency? A: Other justified grounds for refusal to act as a counsel de oficio are:

1. Too many de oficio cases assigned to the lawyer; (People v. Daeng, G.R. No. L-34091, Jan. 30, 1973)

2. Conflict of interest; (Rule 14.03, CPR) 3. Lawyer is not in a position to carry out the

work effectively or competently; (supra) 4. Lawyer is prohibited from practicing law

by reason of his public office which prohibits appearances in court; and

5. Lawyer is preoccupied with too many cases which will spell prejudice to the new clients.

Q: Atty. J. Bonanza, a semi-retired Metro Manila practitioner has a cattle ranch in the remote municipality of Nueva Ecija. He attends to his law office in Manila on Mondays, Tuesdays and Wednesdays, and the rest of the week he spends in his cattle ranch raising horses. In a criminal case pending before the Municipal Trial Court of Carranglan, the only other licensed member of the bar in the place is representing the complainant. The accused is a detention prisoner. The judge wants to expedite proceedings. What must the judge do to expedite proceedings? A: The judge may appoint attorney Bonanza as counsel de oficio considering that the accused is a detention prisoner and therefore it is assumed that he has no financial means of engaging a paid counsel. (1988 Bar Question)

Q: If Atty. Bonanza is requested to act as counsel for the accused, could he or should he refuse by saying that in the province, he wants to do nothing except ride horses and castrate bulls? Explain.

A: The attorney cannot refuse to be appointed as counsel de oficio merely on the reason that he is a semi-retired practicing lawyer. Precisely one of the reasons for the integration of the bar in the Philippines is to compel all persons who have been admitted to the practice of law in the Philippines to perform their duties to assist the courts in the administration of public. (Ibid) Q: Assailed in a certiorari proceeding is an order of respondent Judge Climaco denying a motion filed by petitioner Ledesma to be allowed to withdraw as counsel de oficio. One of the grounds for such a motion was his allegation that with his appointment as Election Registrar by the COMELEC, he was not in a position to devote full time to the defense of the two accused. The denial by respondent Judge of such a plea, notwithstanding the conformity of the defendants, was due to “its principal effect of delaying the case”. Is the denial of Judge Climaco correct? A: Yes. The reluctance of Ledesma to comply with his responsibilities as counsel de oficio is not an adequate ground for the motion of withdrawal. Membership in the bar is a privilege burdened with a condition. For some lawyers especially the neophytes in the profession being appointed as a lawyer is an irksome chore. Law is a profession dedicated to the ideal of service and not a mere trade. Thus is made manifest the indispensable role of a member of the Bar in the defense of an accused. Such a consideration could have sufficed for Ledesma not being allowed to withdraw as counsel de oficio. For he did betray by his moves his lack of enthusiasm for the task entrusted to him, to put matters mildly. He did point though to his responsibility as an election registrar. Assuming his good faith, no such excuse could be availed now. There is not likely at present, and in the immediate future, an exorbitant demand on his time. (Ledesma v. Climaco, G.R. No. L-23815, June 28, 1974) Q: Ferrer was accused of having raped his 11-year-old stepdaughter. Ferrer’s counsel of record was PAO's Atty. Macabanding. During the pre-trial, both of them failed to appear. Ferrer was considered by the court as having jumped bail. Trial in absentia followed where Ferrer was assisted by another PAO lawyer, Atty. Alonto. Atty. Macabanding did not appear in all the

Rule 14.03, Canon 14, CPR – A lawyer may not refuse to accept representation of an indigent client unless:

a. He is in no position to carry out the work effectively or competently;

b. He labors under a conflict of interest between him and the prospective client or between a present client and a prospective client.


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subsequent hearings of the case. He did not inform the court of his whereabouts. Ferrer was found guilty beyond reasonable doubt of the crime charged and imposed upon him the death penalty. Did Atty. Macabanding live up to the demands expected from a counsel de oficio?

A: No. Ferrer was not properly and effectively accorded the right to counsel. Canon 18 of the CPR requires every lawyer to serve his client with utmost dedication, competence and diligence. He must not neglect a legal matter entrusted to him. For all intents, purposes and appearances, Atty. Macabanding abandoned his client, an accused who stands to face the death penalty.

While he faced the daunting task of defending an accused that had jumped bail, this unfortunate development is not a justification to excuse him from giving his heart and soul to the latter's defense. The exercise of their duties as counsel de oficio meant rendering full meaning and reality to the constitutional precepts protecting the rights of the accused. (People v. Ferrer, G.R. No. 148821, July 18, 2003) Q: What is the rule on the appointment of counsel de oficio for an accused who was convicted by the Regional Trial Court and is desirous of appealing from the judgment of conviction?

A: If an accused is found guilty by the trial court and makes his intention to appeal the decision, the appellate court may appoint a counsel de oficio if it is shown by a certificate of the clerk of the court that:

1. The defendant is confined in prison and not able to file a bail bond;

2. He is without means to employ an attorney de parte; and

3. He desires to be represented by an attorney de oficio.

Note: An appellant who is not confined in prison is not entitled to an attorney de oficio unless a request is made within ten days from notice to file the appellant’s brief and the right thereto is established by affidavit of poverty. (Sec. 13, Rule 122, RRC) (1993 Bar Question)

Q: May a lawyer decline a request for free legal aid to an indigent accused made by a chapter of the IBP? Explain. A: Rule 14.02 of the CPR provides that “a lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de oficio or as

amicus curiae or a request from the IBP or any of its chapter for rendition of free legal aid.” He may, therefore, decline such appointment for “serious and sufficient cause”. For example, he may decline such appointment if it will involve a conflict of interest with another client.

Q: Will your answer be different if the legal aid is requested in a civil case?

A: My answer will not be exactly the same, because in a civil case, the lawyer can also decline if he believes the action or defense to be unmeritorious. He is ethically bound to maintain only actions and proceedings which appear to him to be just and only such defenses which he believes to be honestly debatable under the law. (2002 Bar Question)

Note: A lawyer may refuse to handle cases due to these valid reasons. However, Rule 2.02 requires him to give advice on preliminary steps if he is asked until the client secures the services of counsel. He shall refrain from giving this preliminary advice if there is conflict of interest between a present client and a prospective one for extending such legal advice will create and establish an attorney-client relationship between them and may involve a violation of the rule prohibiting a lawyer from representing conflicting interest.

Q: Atty. Mariano Dajoyag, Jr. is Ernesto Ramos’ counsel. He failed to perfect their appeal before the SC. He filed the petition for certiorari within the 20-day period of extension that he sought in his 2nd motion for extension. He learned that the period of extension granted in his 1st motion for extension was inextendible only after the expiration of the 2 periods of extension that he prayed for. A complaint for negligence and malpractice was filed against him, to which he pleaded good faith and excusable neglect of duty. Is Atty. Dajoyag Jr. guilty of neglect of duty?

A: Yes. Motions for extension are not granted as a matter of right but in the sound discretion of the court, and lawyers should never presume that their motions for extension or postponement will be granted or that they will be granted the length of time they prayed for.

Rule 14.04, Canon 14, CPR – A lawyer who accepts the cause of a person unable to pay his professional fees shall observe the same standard of conduct governing his relations with paying clients. (2008 Bar Question)


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Further, regardless of the agreement Atty. Dajoyag, Jr. had with Ramos with respect to the payment of his fees, Atty. Dajoyag, Jr. owed it to Ramos to do his utmost to ensure that every remedy allowed by law is availed of. Rule 14.04 of the Code of Professional Responsibility enjoins every lawyer to devote his full attention, diligence, skills, and competence to every case that he accepts. Pressure and large volume of legal work do not excuse Atty. Dajoyag, Jr. for filing the petition for certiorari out of time.

Nevertheless, Atty. Dajoyag Jr. exerted efforts to protect the rights and interests of Ernesto Ramos, including trying to secure a reconsideration of the denial of the petition. Thus, he is guilty of simple neglect of duty. (Ramos v. Dajoyag, Jr., A.C. No. 5174, Feb. 28, 2002)

Note: The fact that his services are rendered without remuneration should not occasion a diminution in his zeal. (Ledesma v. Climaco, G.R. No. L-23815, June 28, 1974) Lawyers who devote their professional practice to representing litigants who could ill afford legal services deserve commendation. However, it is not enough to say that all pauper litigants should be assured of legal representation. They deserve quality representation as well. (Canoy v. Ortiz, A.C. No. 5485, Mar. 16, 2005)

2. CANDOR, FAIRNESS AND LOYALTY TO CLIENTS

Q: What does the Code of Professional Responsibility provide pertinent to the lawyer’s duty as regards his dealings and transactions with clients? A: Canon 15 of the Code of Professional Responsibility provides that “A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his client.” A lawyer owes absolute fidelity to the cause of his client. He owes his client full devotion to his interest, warm zeal in the maintenance and defense of his rights. Note: It demands of an attorney an undivided allegiance, a conspicuous and high degree of good faith, disinterestedness, candor, fairness, loyalty,

fidelity and absolute integrity in all his dealings and transactions with his clients and an utter renunciation of every personal advantage conflicting in any way, directly or indirectly, with the interest of his client. (Oparel Sr. v. Abaria, A.C. No. 959, July 30, 1971) If they find that their client’s cause is defenseless, then it is their bounden duty to advise the latter to acquiesce and submit rather than to traverse the incontrovertible. (Rollon v. Atty. Naraval, A.C. No. 6424, March 4, 2005)

a. Confidentiality rule

Note: Confidentiality means the relation between lawyer and client or guardian and ward, or between spouses, with regard to the trust that is placed in the one by the other. (Black’s Law Dictionary 7th Edition 1990, 2004)

b. Privilege Communication

Q. How is Rule 15.02 different from Canon 17? A: Rule 15.02 speaks of the duty of confidentiality to a prospective client while Canon 17 provides for the duty of confidentiality to an actual client. (Funa, 2009) Q: Are matters disclosed by a prospective client to a lawyer protected by the rule on privileged communication? A: Yes. The foregoing disqualification rule applies to prospective clients of a lawyer. Matters disclosed by a prospective client to a lawyer are protected by the rule on privileged communication even if the prospective client does not thereafter retain the lawyer or the latter declines the employment. The reason for this is to make the prospective client free to discuss whatever he wishes with the lawyer without fear that what he tells the lawyer will be divulged or used against him, and for the lawyer to be equally free to obtain information from the prospective client. (CPR Annotated, PhilJA)

Note: A privileged communication is one that refers to information transmitted by voluntary act of disclosure between attorney and client in confidence

CANON 15, CPR - A LAWYER SHALL OBSERVE CANDOR,

FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS

CLIENT. (1991 Bar Question)

Rule 15.02, Canon 15, CPR- A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client. (2008 Bar Question)


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and by means which, so far as the client is aware discloses the information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given. Mere relation of attorney-client does not raise a presumption of confidentiality. (Pineda, 2009) For an information to be considered as privileged, it must be intended by the client as such. (CPR Annotated, PhilJA)

Q: What are the essential factors to establish the existence of the attorney-client privilege communication? A:

1. Where the legal advice of any kind is sought

2. From a professional legal adviser in his capacity as such

3. The communications relating to that purpose

4. Made in confidence 5. By the client 6. Are at his instance permanently protected 7. From disclosure by himself or by the legal

advisor 8. Except if the protection be waived.

(Hadjula v. Madianda, A.C. No. 6711, July 3, 2007)

Q: what are the requisites of privilege communication? A:

1. There is attorney-client relationship or a kind of consultancy requirement with a prospective client;

2. The communication was made by the client to the lawyer in the course of the lawyer’s professional employment;

3. The communication must be intended to be confidential.

Note: The privilege continues to exist even after the termination of the attorney-client relationship. It outlasts the lawyer’s engagement. The privileged character of the communication ceases only when waived by the client himself or after his death, by the heir or legal representative. (Baldwin v. CIR, 94 F. 2d 355, 20 AFTR 940) Note: The party who avers that the communication is privileged has the burden of proof to establish the existence of the privilege unless from the face of the document itself, it clearly appears that it is privileged. The mere allegation that the matter is privileged is not sufficient. (People v. Sleeper, No. 22783, December 3, 1924; Lapena Jr., 2009)

Q: Rosa Mercado’s husband filed an annulment against her. Atty. Julito Vitriolo represented her. Thereafter, a criminal action against her was filed by the latter for falsification of public document. According to Atty. Vitriolo, she indicated in the Certificates of Live Birth of her children that she is married to a certain Ferdinand Fernandez, and that their marriage was solemnized on April 11, 1979, when in truth, she is legally married to Ruben Mercado and their marriage took place on April 11, 1978. Mercado claims that the criminal complaint disclosed confidential facts and information relating to the civil case for annulment handled by Vitriolo as her counsel.

Did Atty. Julito Vitriolo violate the rule on privileged communication between attorney and client?

A: Evidence on record fails to substantiate Mercado’s allegations. She did not even specify the alleged communication in confidence disclosed by Atty. Vitriolo. All of Mercado’s claims were couched in general terms and lacked specificity. Without any testimony from Mercado as to the specific confidential information allegedly divulged by Atty. Vitriolo without her consent, it is difficult, if not impossible to determine if there was any violation of the rule on privileged communication. It is not enough to merely assert the attorney-client privilege. The burden of proving that the privilege applies is placed upon the party asserting the privilege. (Mercado v. Vitrilio, A.C. No. 5108, May 26, 2005)

Q: What is the test in determining whether a communication to an attorney is covered by the rule on privilege communication? A: Whether the communications are made to an attorney with view of obtaining from him personal assistance or advice regardless of whether there is a pending or merely impending litigation or any litigation. Q: What are the purposes of making the communication privileged? A:

1. To encourage a client to make a full disclosure of the facts of the case to his counsel without fear

2. To allow the lawyer freedom to obtain full information from his client.

Documents

106883402 76160156 UST GN 2011 Legal and Judicial Ethics Proper Index 2